Costs in all the Courts

The supply and overflow pipes of a water-closet which was situated in the defendants' premises and was for their use and convenience got out of order and caused the plaintiff's premises to be flooded. Negligence was negatived. In giving judgment in favour of the defendants Blackburn J. says: "I think it is impossible to say that defendants as occupiers of the upper storey of a house were liable to the plaintiff under the circumstances found in the case. The water-closet and the supply pipe are for their convenience and use, but I cannot think there is any obligation on them at all hazards to keep the pipe from bursting or otherwise getting out of order.

The cause of the overflow was the valve of the supply pipe getting out of order and the escape pipe being choked with paper, and the judge has expressly found that there was no negligence; and the only ground taken by the plaintiff is that the plaintiff and defendants being occupiers under the same landlord, the defendants being the occupiers of the upper storey, contracted an obligation binding them in favour of the plaintiff, the occupier of the lower storey, to keep the water in at their peril. I do not agree to that; I do not think the maxim, 'Sic utere tuo ut alienum non l'das' applies.

Negligence is negatived; and probably, if the defendants had got notice of the state of the pipe and valve and had done nothing, there might have been ground for the argument that they were liable for the consequences; but I do not think the law casts on the defendants any such obligation as the plaintiff contends for. " Their Lordships are in entire sympathy with these views. The provision of a proper supply of water to the various parts of a house is not only reasonable, but has become, in accordance with modern sanitary views, an almost necessary feature of town life.

It is recognized as being so desirable in the interests of the community that in some form or other it is usually made obligatory in civilized countries. Such a supply cannot be installed without causing some concurrent danger of leakage or overflow. It would be unreasonable for the law to regard those who instal or maintain such a system of supply as doing so at their own peril, with an absolute liability for any damage resulting from its presence even when there has been no negligence.

It would be still more unreasonable if, as the respondent contends, such liability were to be held to extend to the consequences of malicious acts on the part of third persons. In such matters as the domestic supply of water or gas it is essential that the mode of supply should be such as to permit ready access for the purpose of use, and hence it is impossible to guard against wilful mischief. Taps may be turned on, ball-cocks' fastened open, supply pipes cut, and waste-pipes blocked.

Against such acts no precaution can prevail. It would be wholly unreasonable to hold an occupier responsible for the consequences of such acts which he is powerless to prevent, when the provision of the supply is not only a reasonable act on his part but probably a duty. Such a doctrine would, for example, make a householder liable for the consequences of an explosion caused by a burglar breaking into his house during the night and leaving a gas tap open.

There is, in their Lordships' opinion, no support either in reason or authority for any such view of the liability of a landlord or occupier. In having on his premises such means of supply he is only using those premises in an ordinary and proper manner, and, although he is bound to exercise all reasonable care, he is not responsible for damage not due to his own default, whether that damage be caused by inevitable accident or the wrongful acts of third persons.

On the above grounds their Lordships are of opinion that the direction of the learned judge at the trial to the effect that "if the plugging up were a deliberately mischievous act by some outsider unless it were instigated by the defendant himself, the defendant would not be responsible," was correct in law, and that upon the finding of the jury that the plugging up was the malicious act of some person the judge ought to have directed the judgment to be entered for the defendant.

The appeal must therefore be allowed and judgment entered for the defendant in the action with costs in all the Courts, and the plaintiff must pay the costs of this appeal, and their Lordships will humbly advise His Majesty accordingly.