AN EVALUATION OF THE

CASE: THAMES VS
DIGGINWELL (MKI),
(2002)
Group B
Rozhan Saeed, Ogunbanjo David, Magnus Giadom, Rhys Davis, Abdul Akande
 ■ Introduction:
On 8th February 1997, flooding occurred to multiple
properties due to a burst water main running along
Lisson Grove, London NW1. 
“Digginwell Plant and Construction Ltd.” damaged
the pipe owned by “Thames Water Utilities Ltd”

Summary of during an excavation in the carriageway at Lisson

Grove where they were trying to connect two cables
laid along the west side of Lisson Grove and along

Case south side of Hays Place.

■ Key point of case statements:
Claimant:        “The water main was fractured as a
result of the negligence of the Defendant "
Defendant:     “The fracture of the main was caused
wholly or in part by the negligence of the Claimant."
LOCATIO
N PLAN
Site Location: It is located
on Lisson Grove, London
NW1.
Carriageway Section

Black – Indicated Location        Red – Actual Location

Particulars (claims against the other party)
The Defendant (Digginwell) failed to...
• Make a request of the details position of the
water main.
• Excavate with sufficient care or diligence.
• Notify the Claimant of its intention to carry out
works.
• Excavate by hand.
• Leave sufficient working space around the water
main.
• Ascertain the position and depth of the water
main.
The Claimant (Thames) failed to...
• Maintain and provide accurate information and
location of the main.
• Warn that the main was located only about an inch
beneath the concrete bed.
• Heed the previous incident in a neighbouring street
(Harewood Avenue) on 21st September 1996 when
another contractor (McNicholas) damaged a water
main under that street in similar circumstances.
• Record the location of the 36” water main belonging
to the Claimants as soon as reasonably practicable
after locating it in the street.
• Heed from the depth of the main.
• Take any effective measures to shut off the water
supply.
 KEY
PARTIES

CLAIMANT DEFENDAN
T
WITNES
EXPERT WITNES
S EXPERT
S
DAVID TNS DUNCAN PROFESSO TONY
ROYSTO TNS
MIDDLEMIS TECHNICI HURWOO R EDWARD MULLARK
TECHNICI VINCEN
S RECORDS N FROST AN TEAM KEVIN
AN TEAM D EVANS KISHAN EY T
OC CFS 1 McGlinchey
OFFICE 2 DE SILVA & SURGU
MR PATSY
MR E
SHIELD REDMOND
BAMWORT
&
H&
MR
MR KING OTHER
VARSANI
PARTIES

MKI
LIMITE McNicholas VICTIMS
D
6
Timeline of Events

Mr. Kevin McGlinchey

arrived on site and The gang had started
proceeded to start work The gang had started excavating the middle of
by scanning for utilities work excavating the the road where the 36’’ Mr shield arrived on site
under the ground. trench main was located. (NST)

8:30 AM 10:00 AM 12:10 PM 12:50 PM

7:30 AM 9:00 AM 12:00 PM 12:40 PM

Mr. Mullarkey one of the Mr. Redmond arrived on The 36’’ main which was Vincent Sugrue arrived
gangs of 4 arrived on site site from another job embedded in concrete on site and reported the
just below the road event
surface was hit
Timeline of events

Mr Shield contacted
Thames customer The water had gotten After the mains burst
centre to request to a stage where it Mr. Shield requested
Mr. Kevin
assistance to shut started flowing across assistance to shut
McGlinchey arrived Th mains was shut.
down the 4’’ main the road down the main
back on site

1:05 PM 1:45 PM 3:45 PM 5:10 PM

1:00 PM 1:30 PM 3:30 PM 4:10 PM 6:45 PM

Water board van had
turned up and started
trying to find the
valves to turn off the
4’’ main
Mr. shield and Mr Mr. Bamworth and
Varsani shut down the Main exploded  
King arrived on site
4’’ main
 Another
Relevant pleas
contractor
Dates on in the amended
McNicholas
Pipe was laid statutory defense where
damaged the
by Thames notices struck out
water mains

6 Nov. 1997
and 15 Nov.
15 Aug. 1996 18 Oct. 1996 1997

Key Dates 1860 21 Sep. 1996 18 Oct. 1997 7 Dec. 2001

Date map was Dates on

Thames
possibly requests for
supplied map to
supplied by information on
MKI on request
Thames the utilities
and was later
according to
passed on to
stamp
Digginwell
 POINTS OF
LAW AND
LEGAL
PRINCIPLES
Metropolis
Section 17:
■ “Every company shall, within one year after the passing of this

Act 1852 Act, cause a map to be made of the district within which any
mains or pipes shall have been laid down or formed by them on
a scale not less than six inches to a mile, and shall cause to be
marked thereon the course and situation of all existing mains
and pipes and shall, within six months from the making of any
alterations or additions, cause the said maps to be from time to
time corrected, and such additions made thereto as may show
the line and situation of all such mains and pipes as may be
laid down or formed by them from time to time...; and such
map, or a copy thereof, with the date expressed thereon of the
last time when the same shall have been so corrected as
aforesaid, shall be kept in the principal office of each company,
and shall be open to the inspection of all persons interested in
the same within the district, who shall be at liberty to take
copies of or extracts from the same.”
Water Act Water Act 1989 s. 165(1):
■ “Subject to subsections (4) and (5) below, it shall be
1989 the duty of the Authority and of every water
undertaker to keep records of the location of –

(a) every resource main, water main or discharge

pipe which is for the time being vested in the
Authority or, as the case may be, that undertaker;
and
(b) any other underground works, other than a
service pipe, which are for the time being vested in
the Authority or, as the case may be, that
undertaker.”
Water Industry Section 209 (1):
“Where an escape of water, however caused, from a pipe
Act 1991 vested in a water undertaker causes loss or damage, the
undertaker shall be liable, except as otherwise provided
in this section, for the loss or damage.”

Section 209 (5):

“Nothing in subsection (1) above affects any entitlement
which a water undertaker may have to recover
contribution under Civil Liability (Contribution) Act
1978; and for the purposes of that Act, any loss for which
a water undertaker is liable under that subsection shall be
treated as if it were damage.”
Civil Liability Section 1 (1):
Subject to the following provisions of this section, any
(Contribution) person liable in respect of any damage suffered by
another person may recover contribution from any other
Act 1978 person liable in respect of the same damage (whether
jointly with him or otherwise)...
Application to Case

Metropolis and Water Act:

■ Thames Stat Maps Inaccuracies
■ Thames Stat Maps Lack of Updates

Water Industry Act and Civil Liability (Contribution) Act:

■ Thames paid out full damages to affected households
■ Thames were claiming contributory damages back from Digginwell
Summary of Judgement Given
Judges Conclusion:

■ The initial damage to the Main on 8 February 1997 was caused by the negligence of Digginwell.
■ BUT... the cause of the loss allegedly was the failure of Thames to shut down the Main quickly.
■ SO... Thames is not entitled to contribution from Digginwell under Civil Liability
(Contribution) Act 1978 to the sums which it has apparently paid to the Victims. 
■ BECAUSE... Thames was in breach of its duty to eliminate hazards arising from its
equipment, namely, keeping updated map records and not shutting down the mains in a
reasonable time considering prior knowledge. The errors to which caused the losses suffered by
the Victims.
Critique of the Case and Judgement

■ Why did the judge deem Digginwell not liable?

■ What was wrong with the maps and why was this an issue?

■ Did Digginwell do anything wrong?

■ Why were Thames Liable for all of the damages?

Conclusion

■ If Mr. Shield had been equipped with an accurate map he would have know that the leak
was from the 36’’ pipe
■ He should have further noticed that the depth of the JCB pecker hit at a shallow level
■ Through simple inquiry he should have know that the 4’’ main was already revealed
■ Therefore in conclusion Thames could’ve have commenced shutting down mains at
1:00pm and finished no later than 3:45pm.