Responsibilities for a leak

[Vir Campestris]

My wife owns a flat jointly with our son. He lives in it, and pays us a
small rent for our half.

The freehold is (finally, after many delays) owned by a company in which
there are shares evenly divided between the four owners in the building
(it was originally a large house).

Our son had a minor plumbing fault, and the washing machine overflowed
the kitchen sink. Apparently there's a small amount of damage in the
flat below, and the bathroom light doesn't work.

Just to make it interesting he's now away for several months - and we're
not very near. Which is annoying as I could probably fix it.

We'd put in a claim against the building insurance. Except it has a £350
excess, which is likely to be more than the bill. Given that without the
excess the insurance would be paying who is responsible? The occupier of
the flat, the owner, or the management company has a whole?

Andy

[davi...@gmail.com]

On Friday, 6 April 2018 22:57:41 UTC+1, Vir Campestris wrote:

> We'd put in a claim against the building insurance. Except it has a £350
> excess, which is likely to be more than the bill. Given that without the
> excess the insurance would be paying who is responsible? The occupier of
> the flat, the owner, or the management company has a whole?

Possibly none of them, and it's a risk which the people downstairs have to suck up - unless they can show negligence on the part of your wife/son. Though I suspect good neighbourliness will outweigh the strict legal position.

[Yellow]

On Fri, 6 Apr 2018 22:57:40 +0100, Vir Campestris
<vir.cam...@invalid.invalid> posted:

Would building insurance cover this? Given it was caused by an appliance
rather than say, a burst pipe.

Unless perhaps the block has paid extra for "accidental damage"
coverage?

And when I live in a flat, given the damage was covered by the building
insurance so was no one's direct fault if you like, the excess was
covered out of the maintenance fund.

[Pelican]

On 7/04/2018 08:54, davi...@gmail.com wrote:
> On Friday, 6 April 2018 22:57:41 UTC+1, Vir Campestris wrote:
>

>> We'd put in a claim against the building insurance. Except it has a £350

>> excess, which is likely to be more than the bill. Given that without the
>> excess the insurance would be paying who is responsible? The occupier of
>> the flat, the owner, or the management company has a whole?
>
> Possibly none of them, and it's a risk which the people downstairs have to suck up - unless they can show negligence on the part of your wife/son. Though I suspect good neighbourliness will outweigh the strict legal position.

The law has provided a remedy for centuries for people whose property is
damaged in such a manner. That's partly why insurance exists. In broad
terms, people should use and maintain their property so as not to harm
their neighbour.

[tim...]

"Vir Campestris" <vir.cam...@invalid.invalid> wrote in message
news:pa8qgi$lr5$1...@dont-email.me...

Having lived almost my whole adult life in flats, the (cost of) the repair
to such damage is the responsibility of occupier of the flat that caused the
leak I.e. your son.

An overflowing sink is not the same as a burst/leaking pipe. It is cause
entirely by a mistake on the part of the householder and not likely to be
covered by insurance, either the block as a whole or any that the individual
flat may have (and even if the latter does cover it, it is still the
responsibility of the upper flat occupier to recompense the lower flat
owner/occupier directly and recover his costs from his insurance)

HTH

tim






>
> Andy

[Norman Wells]

Your son owes a duty of care to other residents, and is responsible not
only for his own problems but those he causes to other people. It's his
responsibility therefore to make good the flat below to their satisfaction.

Normally, that would be done by them arranging it with a contractor they
trust and then getting your son to pay the bill, claiming off his own
insurance if he can.

If the occupiers of the flat below would be happy for you to do the
work, all well and good. If not, it's their choice.

The £350 excess was a risk your son took. If the cost of the work is
less than that then he's better off paying out of his own pocket.

Incidentally, you might like to look at his insurance to ensure that
he's covered while he's away. Many policies invalidate if the insured
is away for more than, say, 30 consecutive days.

[Robin]

On 06/04/2018 22:57, Vir Campestris wrote:

It might help if you told us the nature of the "plumbing fault", where
it occurred, and other things that may be relevant - whether the
washing machine was installed properly, what caused the problem (eg fat
poured down the sink?), and just what the lease provides. But on a
purely pragmatic point, I'm struck that you do not mention the value of
keeping on good terms with the neighbours[1]. Whatever the letter of
the law, I'd be asking myself if it is worth the risk of upsetting one
or more of them in order to try to save 3/4 of £350 or so.

[1] eg might there be times when he would want a neighbour to check on
the flat while he is away in order to satisfy the insurers or does he
have a sufficient number of friends/relatives living locally to do so?

--
Robin
reply-to address is (intended to be) valid

[davi...@gmail.com]

On Saturday, 7 April 2018 07:20:57 UTC+1, Pelican wrote:
> On 7/04/2018 08:54, davi...@gmail.com wrote:
> > On Friday, 6 April 2018 22:57:41 UTC+1, Vir Campestris wrote:
> >
> >> We'd put in a claim against the building insurance. Except it has a £350
> >> excess, which is likely to be more than the bill. Given that without the
> >> excess the insurance would be paying who is responsible? The occupier of
> >> the flat, the owner, or the management company has a whole?
> >
> > Possibly none of them, and it's a risk which the people downstairs have to suck up - unless they can show negligence on the part of your wife/son. Though I suspect good neighbourliness will outweigh the strict legal position.
>

> In broad
> terms, people should use and maintain their property so as not to harm
> their neighbour.

Indeed, but we don't know what the cause of the leak was. The duty is not to do anything negligent (or deliberate) which would cause harm, not an indemnity against all unexpected incidents.

[Roland Perry]

In message <99594333-cc32-44c4...@googlegroups.com>, at
10:09:02 on Sat, 7 Apr 2018, davi...@gmail.com remarked:

>> In broad terms, people should use and maintain their property so as
>>not to harm their neighbour.
>
>Indeed, but we don't know what the cause of the leak was.

OT: uk.d-i-y If it was a washing machine plumbed into the waste pipes
under a sink, which then caused the sink to overflow, it must be a
blockage somewhere downstream of where the washing machine water is
injected into the system.

<https://www.diy.com/departments/floplast-sink-washing-machine-trap-dia-
40mm/35089_BQ.prd>

Above that fitting is the sink, to the left is the outside world.
--
Roland Perry

[Yellow]

On Sat, 7 Apr 2018 21:09:52 +0100, Roland Perry <rol...@perry.co.uk>
posted:

In which case, that would not be covered by the block's building
insurance unless there was additional accidental damage coverage, which
would be unusual I think.

[Pelican]

Focusing on insurance coverage is putting the horse before the cart.

[Pelican]

On 8/04/2018 03:09, davi...@gmail.com wrote:
> On Saturday, 7 April 2018 07:20:57 UTC+1, Pelican wrote:
>> On 7/04/2018 08:54, davi...@gmail.com wrote:
>>> On Friday, 6 April 2018 22:57:41 UTC+1, Vir Campestris wrote:
>>>

>>>> We'd put in a claim against the building insurance. Except it has a £350

>>>> excess, which is likely to be more than the bill. Given that without the
>>>> excess the insurance would be paying who is responsible? The occupier of
>>>> the flat, the owner, or the management company has a whole?
>>>
>>> Possibly none of them, and it's a risk which the people downstairs have to suck up - unless they can show negligence on the part of your wife/son. Though I suspect good neighbourliness will outweigh the strict legal position.
>>
>> In broad
>> terms, people should use and maintain their property so as not to harm
>> their neighbour.
>
> Indeed, but we don't know what the cause of the leak was. The duty is not to do anything negligent (or deliberate) which would cause harm, not an indemnity against all unexpected incidents.

I appreciate that negligence is the knee-jerk claim, but it was only
recently invented. There were remedies available between adjacent
landowners/occupiers long before them. My objection was to "Possibly
none of them..."

[Yellow]

On Sun, 8 Apr 2018 07:36:25 +1000, Pelican <water-
bi...@sea.somewhere.org.ir> posted:

It was what the OP asked about.

[Roland Perry]

In message <MPG.3534038e4...@News.Individual.NET>, at 11:47:16
on Sun, 8 Apr 2018, Yellow <no...@none.com.invalid> remarked:

>> >>>> In broad terms, people should use and maintain their property so as
>> >>>> not to harm their neighbour.
>> >>>
>> >>> Indeed, but we don't know what the cause of the leak was.
>> >>
>> >> OT: uk.d-i-y If it was a washing machine plumbed into the waste pipes
>> >> under a sink, which then caused the sink to overflow, it must be a
>> >> blockage somewhere downstream of where the washing machine water is
>> >> injected into the system.
>> >>
>> >> <https://www.diy.com/departments/floplast-sink-washing-machine-trap-dia-
>> >> 40mm/35089_BQ.prd>
>> >>
>> >> Above that fitting is the sink, to the left is the outside world.
>> >
>> > In which case, that would not be covered by the block's building
>> > insurance unless there was additional accidental damage coverage, which
>> > would be unusual I think.
>>
>> Focusing on insurance coverage is putting the horse before the cart.
>
>It was what the OP asked about.

The OP assumed it would be covered (I have my doubts whether it would,
depending on exactly where in the pipework a blockage might be[1], and
whether that's an insured risk).

[1] unless of course the insurance company is unconcerned about where
the water which caused the damage came from.
--
Roland Perry

[Yellow]

On Sun, 8 Apr 2018 12:00:51 +0100, Roland Perry <rol...@perry.co.uk>
posted:
>

Me too - which has been the point of both of my posts. :-)

>
> [1] unless of course the insurance company is unconcerned about where
> the water which caused the damage came from.

In my experience, building insurance claims do not go direct but have to
go through the managing agent (or freeholder) as it is the freeholder
insurance policy.

The long-leaseholders simply pay for it.

It is also my experience that the maintenance fund will pay any excesses
too as building claims are not for accidents but for incidents that the
maintenance fund would otherwise have to pay cover.

So what I am alluding to is that claims to the insurer will be vetted
and the freeholder/managing agent will be the ones to decide to make a
claim, not the long-leaseholder.

[GB]

On 08/04/2018 12:00, Roland Perry wrote:

> The OP assumed it would be covered (I have my doubts whether it would,
> depending on exactly where in the pipework a blockage might be[1], and
> whether that's an insured risk).
>
> [1] unless of course the insurance company is unconcerned about where
>     the water which caused the damage came from.

Most of these policies include public liability cover, so it might be
covered under that.

I researched this subject a while ago, as we had a water leak from my
son's flat. Please don't ask me for references, but I came to the
conclusion that he was not liable. On that occasion, the waste pipe
under the bath suddenly and entirely unexpectedly dropped away from the
plughole.

We repaired the plumbing immediately. The public liability insurance
would have covered any liability, had he had any, but subject to a £1000
excess. He offered to go downstairs and repaint the ceiling.

[Roland Perry]

In message <pad12g$b0v$1...@dont-email.me>, at 13:14:06 on Sun, 8 Apr 2018,
GB <NOTso...@microsoft.com> remarked:

>On 08/04/2018 12:00, Roland Perry wrote:
>
>> The OP assumed it would be covered (I have my doubts whether it
>>would, depending on exactly where in the pipework a blockage might
>>be[1], and whether that's an insured risk).
>> [1] unless of course the insurance company is unconcerned about
>>where
>>     the water which caused the damage came from.
>
>Most of these policies include public liability cover, so it might be
>covered under that.

Is the flat downstairs part of "the public"?

>I researched this subject a while ago, as we had a water leak from my
>son's flat.

Same son, same flat?

>Please don't ask me for references, but I came to the conclusion that
>he was not liable.

Not liable for what - the cost of repairing the pipe, or the cost of
repainting the ceiling?

>On that occasion, the waste pipe under the bath suddenly and entirely
>unexpectedly dropped away from the plughole.

It happens more often than perhaps you imagine. Showers are even worse.

If this is in the same flat-conversion, then very often it's the dodgy
builders, trying to retrofit plumbing into a location not designed for
it, which is the problem.

>We repaired the plumbing immediately. The public liability insurance
>would have covered any liability, had he had any,

That's just saying "liable if liable" and doesn't add anything helpful.

>but subject to a £1000 excess. He offered to go downstairs and repaint
>the ceiling.

--
Roland Perry

[GB]

On 08/04/2018 13:26, Roland Perry wrote:

>> Please don't ask me for references, but I came to the conclusion that
>> he was not liable.
>
> Not liable for what - the cost of repairing the pipe, or the cost of
> repainting the ceiling?
>

I came to the conclusion that he had no liability for damage to the flat
below, as he had not misused the bath and had no prior warning of the
failure.

There's case law that if you do something inherently dangerous on your
property, you have a duty to take reasonable steps to try to ensure
safety. (Some 150 year old case of a dam breaking IIRC.) But I don't
think having a bath in your flat comes into that category.

[Pelican]

Rylands v Fletcher is the case, but not relevant.

[Janet]

In article <MPG.3534038e4...@News.Individual.NET>,
no...@none.com.invalid says...

The OP asked who pays if the insurance doesn't .

Janet.

---
This email has been checked for viruses by AVG.
http://www.avg.com

[The Todal]

On 06/04/2018 22:57, Vir Campestris wrote:

If the flood was caused by negligence then the person who was negligent
is liable - that's straightforward enough. So if your son knew or ought
to have known that the sink would overflow (eg, he had poured grease
down the sink) then he's liable but should be able to avail himself of
the public liability cover in the buildings insurance policy. Which
should have no excess. This excess of which you speak surely applies
only to those who are claiming from the buildings insurers for damage to
their own property caused by the leak.

I don't quite understand "we'd put in a claim against the building
insurance". I take it to mean that you claimed the cost of the damage
to your own kitchen (ie the kitchen in the flat owned by your son and
wife) caused by the flooding.

[tim...]

"Yellow" <no...@none.com.invalid> wrote in message
news:MPG.35341601f...@News.Individual.NET...

Water damage from (accidental) overflow of water in own, or an adjacent flat
does not come under buildings insurance cover

it is a contents insurance issue

Building insurance covers water damage caused by ingress of "weather"

> The long-leaseholders simply pay for it.

as a long leaseholder I would be very annoyed if a neighbour gave me a bill
for someone else's negligence (either directly or as an increase in my
management charges for future insurance costs)

>
> It is also my experience that the maintenance fund will pay any excesses
> too as building claims are not for accidents but for incidents that the
> maintenance fund would otherwise have to pay cover.

which this is not

> So what I am alluding to is that claims to the insurer will be vetted
> and the freeholder/managing agent will be the ones to decide to make a
> claim, not the long-leaseholder.

I would hope that they would reject a claim in this instance

tim

[The Todal]

I disagree.

Typical policy wording in a buildings policy:

quote

We will provide the following cover for any loss or damage to the
building up to the limit of cover shown on your schedule:
1. fire (including resultant smoke damage), lightning, explosion or
earthquake.
2. Water or oil leaking from any fixed tank, appliance or pipe, but not:
subsidence, heave or landslip caused by escaping water (etc)

unquote

That covers you for the damage to your building caused by the water
escape. For example, the cost of replastering a ceiling. It would be
interesting to see if they try to argue that the water did not leak from
a pipe or fixed tank but rather from a blocked sink.

There is then a separate section that covers you for your liability "as
owner of the building" to the public for property damage. That should
cover you if there are claims against you from other tenants whose
property has been damaged by your negligence as owner of the building.


Contents insurance will have a paragraph covering you for your liability
as "occupiers of the home". This might also cover you for negligently
permitting an escape of water.

[Roland Perry]

In message <MPG.353461325...@news.individual.net>, at 18:26:47
on Sun, 8 Apr 2018, Janet <nob...@home.com> remarked:

>> > Focusing on insurance coverage is putting the horse before the cart.
>>
>> It was what the OP asked about.
>
> The OP asked who pays if the insurance doesn't .

If it's because it would be a valid claim, but under the excess: The
resident (who was happy to accept that excess).
--
Roland Perry

[Roland Perry]

In message <fiv3p2...@mid.individual.net>, at 19:02:10 on Sun, 8 Apr
2018, The Todal <the_...@icloud.com> remarked:

>Typical policy wording in a buildings policy:
>
>quote
>
>We will provide the following cover for any loss or damage to the
>building up to the limit of cover shown on your schedule:
>1. fire (including resultant smoke damage), lightning, explosion or
>earthquake.
>2. Water or oil leaking from any fixed tank, appliance or pipe, but
>not:
>subsidence, heave or landslip caused by escaping water (etc)
>
>unquote
>
>That covers you for the damage to your building caused by the water
>escape. For example, the cost of replastering a ceiling. It would be
>interesting to see if they try to argue that the water did not leak
>from a pipe or fixed tank but rather from a blocked sink.

Or indeed from say a tap left running (taps are appliances, aren't
they?) into a sink with the plug left in. At which point, also, the
appliance it's leaking from is arguably that sink.

I don't think the spirit of the insurance policy would be to cover that.

Or is that not a "leak"???
--
Roland Perry

[Yellow]

On Sun, 8 Apr 2018 18:40:18 +0100, tim... <tims_n...@yahoo.com>
posted:

>
> "Yellow" <no...@none.com.invalid> wrote in message
> news:MPG.35341601f...@News.Individual.NET...

> > In my experience, building insurance claims do not go direct but have to
> > go through the managing agent (or freeholder) as it is the freeholder
> > insurance policy.
>
> Water damage from (accidental) overflow of water in own, or an adjacent flat
> does not come under buildings insurance cover
>
> it is a contents insurance issue

If you have read any of my previous posts, that is my point exactly - I
am just saying that in any case, the long-leaseholder is unlikely to be
able to go directly to the building insurer.

> Building insurance covers water damage caused by ingress of "weather"

Incidents rather than accidents, to repeat my words.

> > The long-leaseholders simply pay for it.
>
> as a long leaseholder I would be very annoyed if a neighbour gave me a bill
> for someone else's negligence (either directly or as an increase in my
> management charges for future insurance costs)

I could not agree more.

> > It is also my experience that the maintenance fund will pay any
excesses
> > too as building claims are not for accidents but for incidents that the
> > maintenance fund would otherwise have to pay cover.
>
> which this is not

Exactly.

> > So what I am alluding to is that claims to the insurer will be vetted
> > and the freeholder/managing agent will be the ones to decide to make a
> > claim, not the long-leaseholder.
>
> I would hope that they would reject a claim in this instance

Insurance companies are not known for paying out for things that aren't
covered.

But anyway - the way it works, living in a long-leasehold flat, is quite
alien to most people - even to some who live in them, as I expect is
your experience too. :-)

One of my best stories to illustrate this is the lady who attended a
resident's association meeting with her maintenance bill in hand and
asked "I have to pay this every year?".

[Vir Campestris]

On 07/04/2018 09:20, Norman Wells wrote:
> The £350 excess was a risk your son took.  If the cost of the work is
> less than that then he's better off paying out of his own pocket.
>

The £350 excess is on the buildings insurance, which was arranged by one
of the other freeholders, not by him.

> Incidentally, you might like to look at his insurance to ensure that
> he's covered while he's away.  Many policies invalidate if the insured
> is away for more than, say, 30 consecutive days.

60 days. We'll go and stay for a bit while he's away. Thanks for
pointing that out.

Andy

[Vir Campestris]

On 08/04/2018 18:50, The Todal wrote:
> If the flood was caused by negligence then the person who was negligent
> is liable - that's straightforward enough. So if your son knew or ought
> to have known that the sink would overflow (eg, he had poured grease
> down the sink) then he's liable but should be able to avail himself of
> the public liability cover in the buildings insurance policy. Which
> should have no excess. This excess of which you speak surely applies
> only to those who are claiming from the buildings insurers for damage to
> their own property caused by the leak.
>
> I don't quite understand "we'd put in a claim against the building
> insurance".  I take it to mean that you claimed the cost of the damage
> to your own kitchen (ie the kitchen in the flat owned by your son and
> wife) caused by the flooding.

A few points that are picked up by various people:
The £350 excess is for "escape of water". Perhaps I should point him at
uk.d-i-y, but he's not on the Internet much and has probably never heard
of Usenet. He has this odd habit of _talking_ to people... he's not in
the least bit technical.

And finally to The Todal specifically...
My wife and our son own the top flat. the damage is to the one underneath.

Andy

[Pelican]

The answer is that the person legally responsible for the damage pays.
If that person has insurance cover for that liability, their insurer
pays. If the person harmed has an insurer who covers the damage, that
insurer will be looking for the person responsible for the damage, or
that person's insurer.

But fiddling about with insurance disguises the legal issue of who is
responsible for the leak.

[Roland Perry]

In message <pae234$7rg$1...@dont-email.me>, at 22:37:42 on Sun, 8 Apr 2018,
Vir Campestris <vir.cam...@invalid.invalid> remarked:

>A few points that are picked up by various people:
>The £350 excess is for "escape of water".

That must have an accepted meaning, in loss-adjuster-speak, but I'm
afraid I don't have any prior experience whether the circumstances
described are covered.

A quick google shows most insurers have an FAQ for this risk, and they
are highly skewed towards burst pipes and split tanks. Although some do
mention loose water feed (but interesting not drain) connectors on
appliances.

Overflowing baths because the tap has been left on is probably
"accidental damage", though.


Roland Perry

[tim...]

"Yellow" <no...@none.com.invalid> wrote in message

news:MPG.35348141b...@News.Individual.NET...

> On Sun, 8 Apr 2018 18:40:18 +0100, tim... <tims_n...@yahoo.com>
> posted:
>>
>> "Yellow" <no...@none.com.invalid> wrote in message
>> news:MPG.35341601f...@News.Individual.NET...

>

> But anyway - the way it works, living in a long-leasehold flat, is quite
> alien to most people - even to some who live in them, as I expect is
> your experience too. :-)
>
> One of my best stories to illustrate this is the lady who attended a
> resident's association meeting with her maintenance bill in hand and
> asked "I have to pay this every year?".

The lady across the way from me, because the word "Garden" was part of the
company name thought that this was a bill for the upkeep of her (communal)
garden and wanted to know why this wasn't paid from the maintenance fund.

It was, in fact, a demand for her ground rent (and quite clearly specified
as such on the bill)

tim

[Fredxx]

You are only responsible for any damage through your own negligence. The
fact a leak originates in one house and causes damage in another can
just mean both household are 'responsible' for the damage.

[ingram....@gmail.com]

Years ago I had a flat leasehold and below me was another flat still council rented; council was landlord for both and arranging insurance. My heating pipe leaked, buried in floor screed and first evidence was damp in ceiling below. Insurance co said that I had to claim for my damage and flat below for theirs (via council in their case). I had to pay for my plumbing repairs myself, they only paid for consequential damage.

nib

[Pelican]

Do you mean that only the tort of negligence offers a remedy?
Negligence has tended to spread widely, but I doubt if fault has
excluded every other remedy available.

[Pelican]

On 10/04/2018 02:08, ingram....@gmail.com wrote:
> On Monday, April 9, 2018 at 5:02:37 PM UTC+1, Fredxx wrote:
>> On 08/04/2018 23:52, Pelican wrote:
>>> On 9/04/2018 03:26, Janet wrote:
>>>> In article <MPG.3534038e4...@News.Individual.NET>,
>>>> no...@none.com.invalid says...
>>>>>
>>>>> On Sun, 8 Apr 2018 07:36:25 +1000, Pelican <water-
>>>>> bi...@sea.somewhere.org.ir> posted:
>>>>>>
>>>>>> On 8/04/2018 07:18, Yellow wrote:
>>>>>>> On Sat, 7 Apr 2018 21:09:52 +0100, Roland Perry <rol...@perry.co.uk>
>>>>>>> posted:
>>>>>>>>
>>>>>>>> In message
>>>>>>>> <99594333-cc32-44c4...@googlegroups.com>, at
>>>>>>>> 10:09:02 on Sat, 7 Apr 2018, davi...@gmail.com remarked:

>>>>>>>>>> In broad  terms, people should use and maintain their property
>>>>>>>>>> so as
>>>>>>>>>> not to harm  their neighbour.

>>>>>>>>>
>>>>>>>>> Indeed, but we don't know what the cause of the leak was.
>>>>>>>>
>>>>>>>> OT: uk.d-i-y If it was a washing machine plumbed into the waste pipes
>>>>>>>> under a sink, which then caused the sink to overflow, it must be a
>>>>>>>> blockage somewhere downstream of where the washing machine water is
>>>>>>>> injected into the system.
>>>>>>>>
>>>>>>>> <https://www.diy.com/departments/floplast-sink-washing-machine-trap-dia-
>>>>>>>>
>>>>>>>> 40mm/35089_BQ.prd>
>>>>>>>>
>>>>>>>> Above that fitting is the sink, to the left is the outside world.
>>>>>>>
>>>>>>> In which case, that would not be covered by the block's building
>>>>>>> insurance unless there was additional accidental damage coverage,
>>>>>>> which
>>>>>>> would be unusual I think.
>>>>>>
>>>>>> Focusing on insurance coverage is putting the horse before the cart.
>>>>>
>>>>> It was what the OP asked about.
>>>>

>>>>    The OP asked who pays if the insurance doesn't .

>>>
>>> The answer is that the person legally responsible for the damage pays.
>>> If that person has insurance cover for that liability, their insurer

>>> pays.  If the person harmed has an insurer who covers the damage, that

>>> insurer will be looking for the person responsible for the damage, or
>>> that person's insurer.
>>>
>>> But fiddling about with insurance disguises the legal issue of who is
>>> responsible for the leak.
>>
>> You are only responsible for any damage through your own negligence. The
>> fact a leak originates in one house and causes damage in another can
>> just mean both household are 'responsible' for the damage.
>
> Years ago I had a flat leasehold and below me was another flat still council rented; council was landlord for both and arranging insurance. My heating pipe leaked, buried in floor screed and first evidence was damp in ceiling below. Insurance co said that I had to claim for my damage and flat below for theirs (via council in their case). I had to pay for my plumbing repairs myself, they only paid for consequential damage.

The issue raised by the OP is your liability for the flat below. What
an insurance company might say about its responsibility and how the
parties must do things need have no bearing on that legal issue.


>
> nib
>

[Fredxx]

Fault and blame are not sufficient for legal responsibility for damage.

If the leak was unexpected and not caused by a lack of maintenance, then
its tough for the occupant/owner below.

[Pelican]

I invite you to consider the law of nuisance. It isn't based on fault,
although much of the remedy it provides is also covered by the tort of
negligence. As it happens, the tort of negligence is often regarded as
fault-based, as opposed to torts of strict liability, but the standard
of the duty of care is such that it is almost a tort of strict liability.

For myself, I have some difficulty with the idea that an upper flat
occupier might escape legal responsibility for damage done by leaking
water from the upper flat to a lower flat, because the leak was not
intended, was unexpected and was not caused by a lack of maintenance.
That comes close to an Act of God, which is quite rare these days, and
distorts the doctrine of res ipsa loquitur. But that isn't the test in
negligence. The test is what a reasonable person would expect.

[Robin]

On 10/04/2018 03:17, Pelican wrote:
>
>
> For myself, I have some difficulty with the idea that an upper flat
> occupier might escape legal responsibility for damage done by leaking
> water from the upper flat to a lower flat, because the leak was not
> intended, was unexpected and was not caused by a lack of maintenance.
> That comes close to an Act of God, which is quite rare these days, and
> distorts the doctrine of res ipsa loquitur.  But that isn't the test in
> negligence.  The test is what a reasonable person would expect.

It is nevertheless the advice widely given that persons in upper flats
are only liable for damage under negligence or nuisance. Absent that,
it's just one of those things - and why insurance is recommended.

As I've already indicated, an owner who follows this path may well
become very unpopular with downstairs neighbours. Sometimes it helps to
offer to pay the excesses on the neighbours' policies so they are not
out of pocket. If the flat owner's insurers are involved they may well
recommend against any offer gestures of goodwill to try to keep
neighbourly peace lest it's seen as an admittance of fault. But in the
OP's case that doesn't seem relevant.




--
Robin
reply-to address is (intended to be) valid

[Pelican]

On 10/04/2018 17:33, Robin wrote:
> On 10/04/2018 03:17, Pelican wrote:
>>
>>
>> For myself, I have some difficulty with the idea that an upper flat
>> occupier might escape legal responsibility for damage done by leaking
>> water from the upper flat to a lower flat, because the leak was not
>> intended, was unexpected and was not caused by a lack of maintenance.
>> That comes close to an Act of God, which is quite rare these days, and
>> distorts the doctrine of res ipsa loquitur.  But that isn't the test
>> in negligence.  The test is what a reasonable person would expect.
>
> It is nevertheless the advice widely given that persons in upper flats
> are only liable for damage under negligence or nuisance.

If you mean that there is only liability for damage if the law says so,
of course must be so.

> Absent that,
> it's just one of those things - and why insurance is recommended.

Sure, where an insurer insures against loss where there is no legal
liability in anyone.

> As I've already indicated, an owner who follows this path may well
> become very unpopular with downstairs neighbours.  Sometimes it helps to
> offer to pay the excesses on the neighbours' policies so they are not
> out of pocket. If the flat owner's insurers are involved they may well
> recommend against any offer gestures of goodwill to try to keep
> neighbourly peace lest it's seen as an admittance of fault.

Of course.

>  But in the
> OP's case that doesn't seem relevant.

As I read the OP, the question being asked is who is liable in principle
for the repairs to the flat downstairs . My answer is that it's the
occupier (the OP's son). The OP appears to accept that, because the OP
says there is insurance coverage for the liability, except for the
excess. In my view, that's a contractual limit the insured has accepted
on the insurance coverage, and the insured wears that. But the occupier
is liable in principle for the full cost of the repairs.

My involvement came about because of a suggestion that no-one is
responsible for the damage to the flat downstairs unless there is
negligence shown by the occupier upstairs. I think that is incorrect.

[Roland Perry]

In message <pahr62$omt$1...@dont-email.me>, at 18:04:50 on Tue, 10 Apr
2018, Pelican <water...@sea.somewhere.org.ir> remarked:

>As I read the OP, the question being asked is who is liable in
>principle for the repairs to the flat downstairs . My answer is that
>it's the occupier (the OP's son). The OP appears to accept that,
>because the OP says there is insurance coverage for the liability,
>except for the excess.

I'm troubled by reasoning which says "I'm liable because I fondly
believe I have insurance to cover it (albeit with an excess)".
--
Roland Perry

[GB]

This is a funny old thread, isn't it? Millions of people live in flats.
There must be tens or hundreds of thousands of leaks every year. You'd
think that it would be easy to find definitive advice about this.

[The Todal]

The excess would apply only when you claim for water damage to your own
property.

It wouldn't apply to claims against you by the tenant who lives below.

If you disagree, it would save time and argument if you quoted the
relevant sections from the buildings policy.

>
> And finally to The Todal specifically...
> My wife and our son own the top flat. the damage is to the one underneath.
>

Yes, I did understand that from the outset.

[The Todal]

It's easy to find definitive advice about this. Some of us have been in
the OP's situation and others of us, mentioning no names, have dealt
professionally with insurers in claims such as this.

I think the problem is that the questions posed are vague and ambiguous,
the relevant policy wording has not been quoted and several people seem
to be at cross purposes.

[Robin]

On 10/04/2018 11:33, GB wrote:

Definitive is a high hurdle. Perhaps a Supreme Court judgment which the
ECHR considered and approved? But if something short of that suffices
then my impression is that (a) there is a general view on the question
which is widely and consistently available; and (b) it is that action to
recover costs from a neighbour requires the ability to show the
neighbour was at fault - in the sense that the neighbour knew or ought
to have known and did nothing about it.

[GB]

On 10/04/2018 13:15, Robin wrote:
> On 10/04/2018 11:33, GB wrote:
>> On 10/04/2018 10:29, Roland Perry wrote:
>>> In message <pahr62$omt$1...@dont-email.me>, at 18:04:50 on Tue, 10 Apr
>>> 2018, Pelican <water...@sea.somewhere.org.ir> remarked:
>>>
>>>> As I read the OP, the question being asked is who is liable in
>>>> principle for the repairs to the flat downstairs .  My answer is
>>>> that it's the occupier (the OP's son).  The OP appears to accept
>>>> that, because the OP says there is insurance coverage for the
>>>> liability, except for the excess.
>>>
>>> I'm troubled by reasoning which says "I'm liable because I fondly
>>> believe I have insurance to cover it (albeit with an excess)".
>>
>> This is a funny old thread, isn't it? Millions of people live in
>> flats. There must be tens or hundreds of thousands of leaks every
>> year. You'd think that it would be easy to find definitive advice
>> about this.
>>
>
> Definitive is a high hurdle.  Perhaps a Supreme Court judgment which the
> ECHR considered and approved?

:)

> But if something short of that suffices
> then my impression is that (a) there is a general view on the question
> which is widely and consistently available; and (b) it is that action to
> recover costs from a neighbour requires the ability to show the
> neighbour was at fault - in the sense that the neighbour knew or ought
> to have known and did nothing about it.

b) is in line with my understanding, after spending a bit of time
researching the subject. However, several posters here have quoted
contrary to that, and they seem to continue doing so.

As Todal put it: "several people seem to be at cross purposes".

A pipe unexpectedly springing a leak is different from leaving water
running with the plug in, so it is almost bound to overflow eventually.
The latter is very likely to be judged negligent.

[Roland Perry]

In message <paici7$4lc$1...@dont-email.me>, at 14:00:53 on Tue, 10 Apr
2018, GB <NOTso...@microsoft.com> remarked:

>A pipe unexpectedly springing a leak is different from leaving water
>running with the plug in, so it is almost bound to overflow eventually.
>The latter is very likely to be judged negligent.

In the case in question, it's perhaps a case of "leaving the washer
running" when there's a block in the drain which means the washer water
backs up into the sink and beyond.

Was the blockage really that sudden, or had previous washes backed up
into the sink but not sufficiently to overflow?
--
Roland Perry

[Ian Jackson]

In article <00acea76-e481-7ea3...@hotmail.com>,

Robin <rb...@hotmail.com> wrote:
> (b) it is that action to recover costs from a neighbour requires the
>ability to show the neighbour was at fault - in the sense that the
>neighbour knew or ought to have known and did nothing about it.

If I lived in a flat I think I would consider this state of affairs
undesirable. After all, there are all sorts of things a householder
can do to increase or reduce the risk of these kind of incidents,
without getting into `negligence' territory.

Is it possible to reverse this default position in a lease, and make
each flat strictly liable for its emanations ? (What about the new
flying freeholds that ISTR hearing about but no-one is using?)

--
Ian Jackson <ijac...@chiark.greenend.org.uk> These opinions are my own.

If I emailed you from an address @fyvzl.net or @evade.org.uk, that is
a private address which bypasses my fierce spamfilter.

[Roland Perry]

In message <PgF*fe...@news.chiark.greenend.org.uk>, at 15:03:01 on Tue,
10 Apr 2018, Ian Jackson <ijac...@chiark.greenend.org.uk> remarked:

>> (b) it is that action to recover costs from a neighbour requires the
>>ability to show the neighbour was at fault - in the sense that the
>>neighbour knew or ought to have known and did nothing about it.
>
>If I lived in a flat I think I would consider this state of affairs
>undesirable. After all, there are all sorts of things a householder
>can do to increase or reduce the risk of these kind of incidents,
>without getting into `negligence' territory.
>
>Is it possible to reverse this default position in a lease, and make
>each flat strictly liable for its emanations ? (What about the new
>flying freeholds that ISTR hearing about but no-one is using?)

Things can get complicated. I saw the following situation once:

An upper flat discharged its waste water into a shared vertical pipe
which went through a lower flat (that pipe not handling any water from
the lower flat).

It turns out that the joints within the lower flat, in that shared
vertical pipe, were defective (from the original build, probably) in as
much as when subjected to half a dozen a day short-sharp discharges of
waste they didn't noticeably leak.

But when the upper flat had a plumbing issue such that the toilet flush
never turned off fully, but resembled a very gently flowing tap, over a
period of weeks that amount of constant water flowing down worked its
way through that downpipe's joints and into the surrounding glass fibre
insulation, and thence into the drywalling surrounding the whole
installation, and the wooden flooring at ground level.

Who is responsible for that?

(The upper flat paid the elevated water bill).
--
Roland Perry

[Pelican]

Upper flat occupier.

> (The upper flat paid the elevated water bill).

Of course.

[Pelican]

On 11/04/2018 00:03, Ian Jackson wrote:
> In article <00acea76-e481-7ea3...@hotmail.com>,
> Robin <rb...@hotmail.com> wrote:
>> (b) it is that action to recover costs from a neighbour requires the
>> ability to show the neighbour was at fault - in the sense that the
>> neighbour knew or ought to have known and did nothing about it.
>
> If I lived in a flat I think I would consider this state of affairs
> undesirable. After all, there are all sorts of things a householder
> can do to increase or reduce the risk of these kind of incidents,
> without getting into `negligence' territory.

As soon as you understand that there is a risk, you are immediately in
negligence territory. It's why people take out (or should take out)
insurance to protect themselves from claims.

> Is it possible to reverse this default position in a lease, and make
> each flat strictly liable for its emanations ? (What about the new
> flying freeholds that ISTR hearing about but no-one is using?)

Reverse? It is already the default position.

[Roland Perry]

In message <paiivd$dm0$1...@dont-email.me>, at 00:50:52 on Wed, 11 Apr
2018, Pelican <water...@sea.somewhere.org.ir> remarked:

>> Things can get complicated. I saw the following situation once:
>> An upper flat discharged its waste water into a shared vertical pipe
>>which went through a lower flat (that pipe not handling any water from
>>the lower flat).
>> It turns out that the joints within the lower flat, in that shared
>>vertical pipe, were defective (from the original build, probably) in
>>as much as when subjected to half a dozen a day short-sharp
>>discharges of waste they didn't noticeably leak.
>> But when the upper flat had a plumbing issue such that the toilet
>>flush never turned off fully, but resembled a very gently flowing
>>tap, over a period of weeks that amount of constant water flowing
>>down worked its way through that downpipe's joints and into the
>>surrounding glass fibre insulation, and thence into the drywalling
>>surrounding the whole installation, and the wooden flooring at ground level.
>> Who is responsible for that?
>
>Upper flat occupier.

Why is the upper flat occupier at fault for discharging water into a
drain which was provided for that specific purpose, and which
incidentally it's impossible to inspect?

Are you suggesting also that the "flying freehold" or whatever means the
A4-sized bit of the lower flat's internal footprint through which said
drain and drywall traverse, is actually the upper flat's property? At
which point perhaps he could say "I don't care how much the drywall is
stained" (but that does leave the damage to the rest of the floor).
--
Roland Perry

[Pelican]

On 11/04/2018 01:39, Roland Perry wrote:
> In message <paiivd$dm0$1...@dont-email.me>, at 00:50:52 on Wed, 11 Apr
> 2018, Pelican <water...@sea.somewhere.org.ir> remarked:
>
>>>  Things can get complicated. I saw the following situation once:
>>>  An upper flat discharged its waste water into a shared vertical pipe
>>> which went through a lower flat (that pipe not handling any water
>>> from the lower flat).
>>>  It turns out that the joints within the lower flat, in that shared
>>> vertical pipe, were defective (from the original build, probably) in
>>> as  much as when subjected to half a dozen a day short-sharp
>>> discharges of  waste they didn't noticeably leak.
>>>  But when the upper flat had a plumbing issue such that the toilet
>>> flush  never turned off fully, but resembled a very gently flowing
>>> tap, over a  period of weeks that amount of constant water flowing
>>> down worked its  way through that downpipe's joints and into the
>>> surrounding glass fibre  insulation, and thence into the drywalling
>>> surrounding the whole  installation, and the wooden flooring at
>>> ground level.
>>>  Who is responsible for that?
>>
>> Upper flat occupier.
>
> Why is the upper flat occupier at fault for discharging water into a
> drain which was provided for that specific purpose, and which
> incidentally it's impossible to inspect?

In negligence, the upper flat occupier is liable for failing to
discharge the duty of care not to cause damage to the lower flat by a
water leak, a well-known problem in that situation. On the given facts,
the "plumbing issue" should have been corrected.

> Are you suggesting also that the "flying freehold" or whatever means the
> A4-sized bit of the lower flat's internal footprint through which said
> drain and drywall traverse, is actually the upper flat's property? At
> which point perhaps he could say "I don't care how much the drywall is
> stained" (but that does leave the damage to the rest of the floor).

Is there a need to go further than deal with the OP's issue?

[Pelican]

I suspect that you have not applied the correct principles of the tort
of negligence in the context of the liability of an occupier of a flat
for water damage caused by a leak to another flat. Water leaks are a
well-known risk, and the occupier has duty of care to prevent a leak.
The occupier won't escape liability by saying the leak was "unexpected".

Quite apart from liability in nuisance.

[Ian Jackson]

In article <fj41ls...@mid.individual.net>,

Pelican <water...@sea.somewhere.org.ir> wrote:
>On 11/04/2018 00:03, Ian Jackson wrote:
>> In article <00acea76-e481-7ea3...@hotmail.com>,
>> Robin <rb...@hotmail.com> wrote:
>>> (b) it is that action to recover costs from a neighbour requires the
>>> ability to show the neighbour was at fault - in the sense that the
>>> neighbour knew or ought to have known and did nothing about it.
>>
>> If I lived in a flat I think I would consider this state of affairs
>> undesirable. After all, there are all sorts of things a householder
>> can do to increase or reduce the risk of these kind of incidents,
>> without getting into `negligence' territory.
>
>As soon as you understand that there is a risk, you are immediately in

>negligence territory. [...]

I understand that is your view. I prefer the opinions of others, who
don't seem to agree with you. That is why I asked my question by
following up to one of Robin's messages.

[GB]

On 10/04/2018 16:39, Roland Perry wrote:

> Why is the upper flat occupier at fault for discharging water into a
> drain which was provided for that specific purpose, and which
> incidentally it's impossible to inspect?

I'll just add that old toilets had an overflow pipe that discharged
outside. People noticed the water and dealt with the problem. Modern
toilets overflow into the syphon, which isn't so easily noticeable.

Incidentally, the change in regs reflects the change in billing. The
water co's don't mind leaks on customer premises any more, as they make
money from it.

[The Todal]

Well, actually he will. If a pipe comes apart or perishes due to its age
or the fact that it was not properly fitted by a plumber, there's no
reason at all to hold the occupier liable - or the landlord of the
premises.

There's no strict duty on a landlord to prevent all faults.

>
> Quite apart from liability in nuisance.

Which is much the same, and therefore wouldn't arise unless there were
regular leaks which hadn't been remedied.

[The Todal]

On 10/04/2018 17:18, GB wrote:
> On 10/04/2018 16:39, Roland Perry wrote:
>
>> Why is the upper flat occupier at fault for discharging water into a
>> drain which was provided for that specific purpose, and which
>> incidentally it's impossible to inspect?
>
> I'll just add that old toilets had an overflow pipe that discharged
> outside. People noticed the water and dealt with the problem. Modern
> toilets overflow into the syphon, which isn't so easily noticeable.

Perhaps the average householder wouldn't pay any attention to the
continuous sound of water trickling down an overflow pipe or trickling
into the toilet bowl. But a judge might well say that the householder
ought to know that something needs fixing.

[The Todal]

On 10/04/2018 15:57, Pelican wrote:
> On 11/04/2018 00:03, Ian Jackson wrote:
>> In article <00acea76-e481-7ea3...@hotmail.com>,
>> Robin  <rb...@hotmail.com> wrote:
>>> (b) it is that action to recover costs from a neighbour requires the
>>> ability to show the neighbour was at fault - in the sense that the
>>> neighbour knew or ought to have known and did nothing about it.
>>
>> If I lived in a flat I think I would consider this state of affairs
>> undesirable.  After all, there are all sorts of things a householder
>> can do to increase or reduce the risk of these kind of incidents,
>> without getting into `negligence' territory.
>
> As soon as you understand that there is a risk, you are immediately in
> negligence territory.  It's why people take out (or should take out)
> insurance to protect themselves from claims.

But that just passes the buck. The insurance company might be well
within its rights to refuse to meet a claim from the downstairs tenant,
and it would then go to court.

As I mentioned previously, a standard buildings insurance policy covers
the policyholder for claims against him arising out of his ownership of
the property. In a block of flats it is standard for everyone to
contribute towards the premium on one buildings insurance policy for the
entire block.

>
>> Is it possible to reverse this default position in a lease, and make
>> each flat strictly liable for its emanations ?  (What about the new
>> flying freeholds that ISTR hearing about but no-one is using?)
>
> Reverse?  It is already the default position.

There is no principle of law that makes each flat strictly liable for
its emanations.

[Fredxx]

On 10/04/2018 15:57, Pelican wrote:

The consensus is the opposite. Can you cite any case where, despite
there being a potential risk, strict negligence does not apply in the
defence of such a claim?

[GB]

On 10/04/2018 19:21, The Todal wrote:

> There is no principle of law that makes each flat strictly liable for
> its emanations.

I get a bit confused by "Rule in Rylands v Fletcher"; that "the person
who for his own purposes brings on his lands and collects and keeps
there anything likely to do mischief if it escapes, must keep it in at
his peril, and, if he does not do so, is prima facie answerable for all
the damage which is the natural consequence of its escape".

That involved building a reservoir,but in principle is installing a
bathroom all that different? Clearly, the flat owner is bringing water
into his flat, and the rest of the above follows. Or perhaps it doesn't?

Oddly, I brought this up before, and Pelican mentioned the case and said
it's not relevant.

[The Todal]

For Rylands v Fletcher to apply, there has to be a non-natural use of
the land, ie the thing brought onto the land must be not the usual sort
of thing. I think Rickards v Lothian may be the case that says water
istallations in a building are a natural user of the land.

[Pelican]

On 11/04/2018 04:12, The Todal wrote:
> On 10/04/2018 17:18, GB wrote:
>> On 10/04/2018 16:39, Roland Perry wrote:
>>
>>> Why is the upper flat occupier at fault for discharging water into a
>>> drain which was provided for that specific purpose, and which
>>> incidentally it's impossible to inspect?
>>
>> I'll just add that old toilets had an overflow pipe that discharged
>> outside. People noticed the water and dealt with the problem. Modern
>> toilets overflow into the syphon, which isn't so easily noticeable.
>
> Perhaps the average householder wouldn't pay any attention to the
> continuous sound of water trickling down an overflow pipe or trickling
> into the toilet bowl. But a judge might well say that the householder
> ought to know that something needs fixing.

Judges knowing something about the legal principles involved, and being
reasonable people.

[Pelican]

Rickards v Lothian (1913) is a Privy Council decision - it's a case from
Australia, which limited the rule in Rylands v Fletcher, as The Todal
mentions.

As it happens, the Australian High Court has expressly killed off
Rylands v Fletcher in 1994 as an exercise in judicial law-making,
because it was an unsatisfactory decision that has been overtaken by
developments in the law of negligence. Nuisance was not raised in the case.

So, it's not odd, and it's not relevant.

[Pelican]

On 11/04/2018 04:21, The Todal wrote:
> On 10/04/2018 15:57, Pelican wrote:
>> On 11/04/2018 00:03, Ian Jackson wrote:
>>> In article <00acea76-e481-7ea3...@hotmail.com>,
>>> Robin  <rb...@hotmail.com> wrote:
>>>> (b) it is that action to recover costs from a neighbour requires the
>>>> ability to show the neighbour was at fault - in the sense that the
>>>> neighbour knew or ought to have known and did nothing about it.
>>>
>>> If I lived in a flat I think I would consider this state of affairs
>>> undesirable.  After all, there are all sorts of things a householder
>>> can do to increase or reduce the risk of these kind of incidents,
>>> without getting into `negligence' territory.
>>
>> As soon as you understand that there is a risk, you are immediately in
>> negligence territory.  It's why people take out (or should take out)
>> insurance to protect themselves from claims.
>
> But that just passes the buck. The insurance company might be well
> within its rights to refuse to meet a claim from the downstairs tenant,
> and it would then go to court.

I assume you mean a claim by the downstairs tenant against the upstairs
tenant. (The downstairs tenant has no need to claim against their
insurer, although if they did, the insurer would go after the upstairs
tenant or their insurer.) If the matter goes to court, I predict that
the matter would be settled on the steps of the court.

> As I mentioned previously, a standard buildings insurance policy covers
> the policyholder for claims against him arising out of his ownership of
> the property. In a block of flats it is standard for everyone to
> contribute towards the premium on one buildings insurance policy for the
> entire block.

Maybe, but As I have previously suggested, that disguises the primary
liability which was the OP's query.

>>> Is it possible to reverse this default position in a lease, and make
>>> each flat strictly liable for its emanations ?  (What about the new
>>> flying freeholds that ISTR hearing about but no-one is using?)
>>
>> Reverse?  It is already the default position.
>
> There is no principle of law that makes each flat strictly liable for
> its emanations.

The tort of negligence has pretty well overtaken much of the civil law
of liability in damages, because the duty of care imposed has become so
pervasive that it has become a de facto strict liability. Once the
particular risk is apparent, the duty arises. Whether it's in
employment, on the road, in a consumer transaction, or concerning water
leaks on property. That's why people take out insurance to protect
themselves against liability.

[GB]

Thanks. That makes perfect sense.

[Pelican]

You will find that the rule in Rylands v Fletcher (1868)is widely
discussed in academic literature (usually by way of criticism), but
rarely cited for anything these days in the courts. The decision is an
example of pure judge-made law.

It has been overtaken by both modern developments in the law of
negligence and nuisance, as well as the growth of insurance.

[Pelican]

In that event, nuisance arises, where liability is strict. But you have
simply glossed over the issue of maintenance. There is a duty of care
against known risks like water leaks, and the matters you mention are
all well-known. The occupier retains the duty of care to the flat
underneath, and that duty isn't discharged because the damage occurred
because of the age of the pipes, or the careless of a plumber.

>> Quite apart from liability in nuisance.
>
> Which is much the same, and therefore wouldn't arise unless there were
> regular leaks which hadn't been remedied.

Much the same? I don't agree.

[Pelican]

I'm afraid that the law of negligence doesn't work that way. In the
real world, sensible occupiers of property have insurance to protect
themselves against personal liability. In the OP's case, that is
precisely the case. The concern the OP has is that the excess agreed
means that the OP has to meet the cost personally because the full cost
of the repairs will be less than the excess. The OP would like to avoid
the cost.

At the deeper level of legal principle, this is yet another example
where the practical experience of posters far exceeds their knowledge of
the law.

[Roland Perry]

In message <fj451p...@mid.individual.net>, at 01:55:02 on Wed, 11

Apr 2018, Pelican <water...@sea.somewhere.org.ir> remarked:

>> Why is the upper flat occupier at fault for discharging water into a
>>drain which was provided for that specific purpose, and which
>>incidentally it's impossible to inspect?
>
>In negligence, the upper flat occupier is liable for failing to
>discharge the duty of care not to cause damage to the lower flat by a
>water leak, a well-known problem in that situation. On the given
>facts, the "plumbing issue" should have been corrected.

What I'm seeking to clarify (and depending on where in the OP's plumbing
the apparent blockage is, it could have direct relevance) is how far
"downstream" does a flat's occupier have that duty of care. Is it only
as far as the floor of their flat (the downpipe within the lower flat
being that flat's problem), and at what point is such a downpipe deemed
to be within the freeholder's purview?

Perhaps it would help to consider a three-story block of flats, and a
downpipe carrying waste from both the top and middle floors through a
void in the ground floor premises.

I didn't want to complicate my earlier description, but here goes: In my
anecdote the waste water was coming from the second floor, the
insufficiently watertight pipe joint was on the middle floor[1], and the
damage was caused on the lower floor.

If someone occupies a flat on the 65th floor of the Shard, do they have
to worry about the downpipe through all lower floors?

>> Are you suggesting also that the "flying freehold" or whatever means
>>the A4-sized bit of the lower flat's internal footprint through which
>>said drain and drywall traverse, is actually the upper flat's
>>property? At which point perhaps he could say "I don't care how much
>>the drywall is stained" (but that does leave the damage to the rest
>>of the floor).
>
>Is there a need to go further than deal with the OP's issue?

The group also exists to discuss hypothetical legal issues, and this one
is very close to the original, actual, issue.

[1] Finding the exact location was quite a bit of detective work.
--
Roland Perry

[Roland Perry]

In message <pajfuv$ebo$1...@dont-email.me>, at 09:04:48 on Wed, 11 Apr
2018, Pelican <water...@sea.somewhere.org.ir> remarked:

>In that event, nuisance arises, where liability is strict. But you
>have simply glossed over the issue of maintenance. There is a duty of
>care against known risks like water leaks, and the matters you mention
>are all well-known. The occupier retains the duty of care to the flat
>underneath, and that duty isn't discharged

voided?

>because the damage occurred because of the age of the pipes, or the
>careless of a plumber.

--
Roland Perry

[Roland Perry]

In message <fj4d3l...@mid.individual.net>, at 19:12:04 on Tue, 10
Apr 2018, The Todal <the_...@icloud.com> remarked:

>>> Why is the upper flat occupier at fault for discharging water into a
>>>drain which was provided for that specific purpose, and which
>>>incidentally it's impossible to inspect?
>
>> I'll just add that old toilets had an overflow pipe that discharged
>>outside. People noticed the water and dealt with the problem. Modern
>>toilets overflow into the syphon, which isn't so easily noticeable.
>
>Perhaps the average householder wouldn't pay any attention to the
>continuous sound of water trickling down an overflow pipe or trickling
>into the toilet bowl.

One of the insidious things about this particular kind of "leak" is that
it's effectively silent. Huge strides have been made in noise-reduction
of the ballcock valve apparatus such that filling a toilet tank no
longer wakes the dead.

>But a judge might well say that the householder ought to know that
>something needs fixing.

To save water, yes. Why should the householder also suspect he needs to
check the downpipes too. After all, years of *flushing* the toilet has
not led to any complaints from those on floors below.
--
Roland Perry

[Roland Perry]

In message <pajgsv$ifg$1...@dont-email.me>, at 09:21:03 on Wed, 11 Apr
2018, Pelican <water...@sea.somewhere.org.ir> remarked:

>The tort of negligence has pretty well overtaken much of the civil law
>of liability in damages, because the duty of care imposed has become so
>pervasive that it has become a de facto strict liability. Once the
>particular risk is apparent, the duty arises. Whether it's in
>employment, on the road, in a consumer transaction, or concerning water
>leaks on property. That's why people take out insurance to protect
>themselves against

the financial consequences of

>liability.

Having insurance doesn't stop you being liable, any more than *having*
insurance *makes* you liable.
--
Roland Perry

[Robin]

On 11/04/2018 00:04, Pelican wrote:
<snip>

> In that event, nuisance arises, where liability is strict.

In practice there's no strict liability in nuisance. See eg
Northumbrian Water Ltd v McAlpine Ltd[1]. McAlpine poured concrete for
(they thought) piles. It actually went into the claimant's sewer. The
claim was for negligence or nuisance. In the High Court HHJ Behrens
dismissed both. He held liability could arise only under the rule in
Rylands v Fletcher which wasn't argued (and for good measure added that
the damage caused to the sewer by the escape of concrete was in any
event not foreseeable). The CA upheld that. Note especially Moor-Bick
LJ at 18

"... although liability in nuisance has traditionally been regarded as
strict, in the sense that it does not depend on proof of negligence, if
the defendant's user of his land is reasonable, he will not be liable
for interference with his neighbour's enjoyment of his land."

> But you have
> simply glossed over the issue of maintenance.  There is a duty of care
> against known risks like water leaks, and the matters you mention are
> all well-known.  The occupier retains the duty of care to the flat
> underneath, and that duty isn't discharged because the damage occurred
> because of the age of the pipes, or the careless of a plumber.

Which omits the question of what's *reasonable* - reasonably
foreseeable, reasonable maintenance, etc. Hence when the council's
water pipe leaked and led to the collapse of Transco's gas main Transco
failed in their claim against the council. And why eg occupiers don't
routinely dig up the floor to check the condition of buried water pipes.


[1] [2014] EWCA Civ 685
http://www.bailii.org/ew/cases/EWCA/Civ/2014/685.html
--
Robin
reply-to address is (intended to be) valid

[The Todal]

On 11/04/2018 00:04, Pelican wrote:

Time for you to cite some law. Case law, statute. Anything.

>
>>> Quite apart from liability in nuisance.
>>
>> Which is much the same, and therefore wouldn't arise unless there were
>> regular leaks which hadn't been remedied.
>
> Much the same?  I don't agree.

I don't think you're a lawyer. I'm willing to be persuaded otherwise.

[Roland Perry]

In message <paknvl$uie$3...@dont-email.me>, at 10:28:05 on Wed, 11 Apr
2018, Jethro_uk <jeth...@hotmailbin.com> remarked:

>> One of the insidious things about this particular kind of "leak" is that
>> it's effectively silent. Huge strides have been made in noise-reduction
>> of the ballcock valve apparatus such that filling a toilet tank no
>> longer wakes the dead.
>

>It was hardly Concorde-level engineering

Perhaps they could have invented them in the 60's then.

>to submerge the filling tube and implement a non-return siphon to
>protect the mains.

The valves don't "hiss" as much, either.
--
Roland Perry

[Rob Morley]

On Sat, 7 Apr 2018 10:09:02 -0700 (PDT)
davi...@gmail.com wrote:

> Indeed, but we don't know what the cause of the leak was

Sounds like the sink drain was clogged with food waste, and the washing
machine that is plumbed into it backed up into the sink. If the sink
was draining noticeably slowly then it's a failure to do basic
maintenance, if some one had recently flushed a load of fat down the
sink that's abuse of the plumbing - either way it's clearly the fault
of the owner of the sink.

[Pelican]

To the contrary, it's time for those arguing that the upstairs flat
occupier has no legal responsibility for damage caused by a water leak
to the flat downstairs.

>>>> Quite apart from liability in nuisance.
>>>
>>> Which is much the same, and therefore wouldn't arise unless there
>>> were regular leaks which hadn't been remedied.
>>
>> Much the same?  I don't agree.
>
>
> I don't think you're a lawyer.

Think again.

> I'm willing to be persuaded otherwise.

Good for you.

[Pelican]

On 11/04/2018 20:46, Robin wrote:
> On 11/04/2018 00:04, Pelican wrote:
> <snip>
>> In that event, nuisance arises, where liability is strict.
>
> In practice there's no strict liability in nuisance.  See eg
> Northumbrian Water Ltd v McAlpine Ltd[1].  McAlpine poured concrete for
> (they thought) piles. It actually went into the claimant's sewer.  The
> claim was for negligence or nuisance. In the High Court HHJ Behrens
> dismissed both. He held liability could arise only under the rule in
> Rylands v Fletcher which wasn't argued (and for good measure added that
> the damage caused to the sewer by the escape of concrete was in any
> event not foreseeable).  The CA upheld that.  Note especially Moor-Bick
> LJ at 18
>
> "... although liability in nuisance has traditionally been regarded as
> strict, in the sense that it does not depend on proof of negligence, if
> the defendant's user of his land is reasonable, he will not be liable
> for interference with his neighbour's enjoyment of his land."

It's usual to consider the facts of cases when working out what the case
stands for - that case didn't involve landowners or occupiers.

>> But you have simply glossed over the issue of maintenance.  There is a
>> duty of care against known risks like water leaks, and the matters you
>> mention are all well-known.  The occupier retains the duty of care to
>> the flat underneath, and that duty isn't discharged because the damage
>> occurred because of the age of the pipes, or the careless of a plumber.
>
> Which omits the question of what's *reasonable* - reasonably
> foreseeable, reasonable maintenance, etc.  Hence when the council's
> water pipe leaked and led to the collapse of Transco's gas main Transco
> failed in their claim against the council. And why eg occupiers don't
> routinely dig up the floor to check the condition of buried water pipes.
>
>
> [1] [2014] EWCA Civ 685
> http://www.bailii.org/ew/cases/EWCA/Civ/2014/685.html

Which explains the spread of insurance.

[Robin]

On 11/04/2018 22:09, Pelican wrote:
> On 11/04/2018 20:46, Robin wrote:
>> On 11/04/2018 00:04, Pelican wrote:
>> <snip>
>>> In that event, nuisance arises, where liability is strict.
>>
>> In practice there's no strict liability in nuisance.  See eg
>> Northumbrian Water Ltd v McAlpine Ltd[1].  McAlpine poured concrete
>> for (they thought) piles. It actually went into the claimant's sewer.
>> The claim was for negligence or nuisance. In the High Court HHJ
>> Behrens dismissed both. He held liability could arise only under the
>> rule in Rylands v Fletcher which wasn't argued (and for good measure
>> added that the damage caused to the sewer by the escape of concrete
>> was in any event not foreseeable).  The CA upheld that.  Note
>> especially Moor-Bick LJ at 18
>>
>> "... although liability in nuisance has traditionally been regarded as
>> strict, in the sense that it does not depend on proof of negligence,
>> if the defendant's user of his land is reasonable, he will not be
>> liable for interference with his neighbour's enjoyment of his land."
>
> It's usual to consider the facts of cases when working out what the case
> stands for - that case didn't involve landowners or occupiers.

So you brush aside a CA judgment which contradicts in clear terms your
assertion on the basis that the law is different for "landowners" and
"occupiers". Could you please cite your authority for that?

>>> But you have simply glossed over the issue of maintenance.  There is
>>> a duty of care against known risks like water leaks, and the matters
>>> you mention are all well-known.  The occupier retains the duty of
>>> care to the flat underneath, and that duty isn't discharged because
>>> the damage occurred because of the age of the pipes, or the careless
>>> of a plumber.
>>
>> Which omits the question of what's *reasonable* - reasonably
>> foreseeable, reasonable maintenance, etc.  Hence when the council's
>> water pipe leaked and led to the collapse of Transco's gas main
>> Transco failed in their claim against the council. And why eg
>> occupiers don't routinely dig up the floor to check the condition of
>> buried water pipes.
>>
>>
>> [1] [2014] EWCA Civ 685
>> http://www.bailii.org/ew/cases/EWCA/Civ/2014/685.html
>
> Which explains the spread of insurance.
>

[Pelican]

I accept your point, but point out that the concept of stare decisis has
not been abolished, as far as I know. Comments that go further than the
rule of law necessary to decide a matter on its particular facts are
sometimes treated as equivalent to legislation.