Storm Desmond brought devastation to large areas of the county causing wide spread flooding and power cuts, resulting in many people being evacuated from their homes and many business unable to open for trade. 

This is the third catastrophic incident in ten years and it seems clear that traditional expectations and planning no longer holds good. Rainfall is increasing in its intensity and Cumbria is one of the areas on the western side of the UK in the main firing line from Atlantic systems. 

The financial impact on individuals, businesses and local authorities will be huge. Intervention from Central Government will be needed. Sums spent on flood schemes will have to be dramatically increased and maybe some properties will have to be sacrificed. Hopefully compulsorily purchased if relating to flood schemes. 

Unfortunately, individuals and business owners bear the prime responsibility for protecting their properties from flood risk. This means that those affected are unlikely to obtain any compensation other than through their buildings insurance and, possibly, through charitable donations. 

As far as the law is concerned and recent events there will be some disputes over whether flooding has been caused or made worse by others. Whilst generally flooding is an act of god (or Force Majeure) an additional responsonsilbilty is placed on landowners if the natural watercourse or flow has been adjusted in some way eg if there is a man made ditch or a culvert on their land. If so, then the landowner has a common law duty to maintain the ditch/culvert and if this is not done, the landowner could be held responsible for damage caused to neighbouring properties/land. Liability can be founded in nuisance and/or negligence. 

By way of example, the pitch at Threlkeld Cricket Club near Keswick was badly damaged following high rainfall and flooding in June 2012. The adjoining landowner had failed to maintain the culvert running alongside the cricket pitch. The culvert was filled with gravel and other debris and overflowed following high rainfall causing irreparable damage to the recently installed cricket square. Baines Wilson assisted the Cricket Club in reaching a settlement with the landowner and its insurers to cover the cost of the necessary remedial works and associated losses. Fortunately, the Cricket Club has not been affected by this weekend’s flooding. Perhaps because the culvert is now subject to regular maintenance. 

It is possible that landowners may be able to avoid liability for any damage caused by Storm Desmond which is likely to be classified as a “force majeure event” or as an act of God. These are events which are out of the control of individuals. However, as flooding in Cumbria is becoming more frequent, it is likely that future floods may not be classified as force majeure events. For that reason, once the floods have receded, land and homeowners need to take urgent steps to clear any ditches/culverts on their land to prevent future flooding. 

In terms of third party responsibility, no one organisation is responsible for flood prevention with local councils, the Environment Agency, water and sewerage companies and other bodies all playing a role. The Highways Agency has the lead responsibility for providing and managing highway drainage and road ditches. If your property/business has been damaged as a result of poorly maintained drainage or ditches then it is possible that you may be able to obtain compensation from the Highways Agency. 

The flooding will have an impact on construction activities in the region with many projects forced to a halt. Depending on the terms of the building contract, a contractor is normally excused for any delays resulting from flooding and will normally be entitled to additional time and money as a result of the delays, with the employer having to pick up the tab. The terms of the contract need to be checked carefully to see who bears the risk of the delays caused by the flooding. Employers will need to notify their insurers of the delay events. If the employer bears the risk then the contractor needs to ensure that they give the relevant notices to the employer within the contractual timescales to ensure that they are entitled to additional time and money. If the formal notices are not given, the contractor may lose its entitlement to additional time and cost. Even if the policy of the parties is not to comply with the formal procedures in the building contract, notices must still be formally given as there is always a risk for the contractor that the employer may change its approach and seek to enforce the strict contract terms when faced with a prolonged period of delay and additional costs. If you find yourself in this scenario then it is advisable to obtain legal advice on the delay clauses in the contract. 

In summary, we advise those affected by the flooding to contact their insurers without delay and once the flooding has receded to take steps to protect their land/property against the risk of future flooding. 

If you have any queries in relation to claims arising from the recent flooding or delays to construction projects in general, please do not hesitate to contact Katherine Sibley on 01524 548 494 or