8th September 2017

TANKED – when neighbours fall out!


In today’s densely populated world, neighbour’s interests often collide, and nothing causes more annoyance than when the neighbours spoil your quiet enjoyment of your property.  This can happen in many ways, the most common irritants being the noisy neighbour, the smelly neighbour, and the polluting neighbour.  Often these cases are usually about an escape of water, but in the recent case of McKenna v O’Hare it was something much worse – oil.


In the summer of 2006 Mr and Mrs McKenna began to notice a smell of oil in their property.  It transpired that this was due to a spillage of oil from a tank on the neighbouring property of Mr and Mrs O’Hare, and accordingly they sued the O’Hares for compensation.  The difficulty for them was that, in law, it is not enough simply to prove that the oil had come from the O’Hares’ property, and nothing more.  They also had to prove that the O’Hares were somehow at fault in allowing it to happen.  Unsurprisingly, they had no idea how the oil had come to leak from the tank, which appeared to be in good condition and free from leaks.  All they could say was that the O’Hares had been doing some building works in their garden near the tank at about the time that the spillage occurred, and the tank’s position had changed.  The O’Hares said that this did not prove fault.  Many explanations were possible for the leak, some of which would indicate that it was their fault, and some of which would indicate that it was not.  The McKennas had not explained how the oil came to leak, and therefore the court could not know whether the O’Hares were at fault or not.  On that basis the O’Hares hoped to win.


Yet the court found in favour of the McKennas.  Their reasoning was simple: the oil had come from the tank.  The tank was in good condition, so it could not have leaked by itself.  Therefore, someone must have interfered with it in some way so that the oil escaped.  That “someone” was probably the O’Hares, since the tank was under their control and they had been carrying out some works in the vicinity.  They had a duty to manage the tank in such a way that the oil would not escape.  They must have interfered with the tank and allowed the escape, and therefore, on balance, they were at fault.


At first glance, this looks like a tough result for the O’Hares, and something of a “damned if you do, damned if you don’t” situation.  If they had failed to look after the tank so that it became leaky, they would no doubt have been found to be at fault, and liable to pay compensation.  But they had looked after the tank, so they were found to be at fault because well-maintained tanks do not leak and they must have done some other careless thing.  However, this would not be a fair assessment of the case.  It was the fact that work had been carried out near the tank, and that it had been moved, which raised the inference that something careless must have been done.  In effect, this evidence threw the ball back into the O’Hares court, and it was for them to show some other explanation of how the leak had occurred.  This they failed to do.


What sort of alternative explanations could they have put forward for the leak, if the evidence had existed?  One might have been a natural disaster, such as a lightning strike or hurricane.  Less dramatic would have been evidence of a third party vandal damaging the tank, or some prankster deliberately opening the tap.  If any of those had been proved, the O’Hares would not have been at fault.


Cases like this have always been difficult precisely because claimants very often do not know, and have no way of knowing, what their neighbours may have done in the privacy of their own property.  This case is therefore interesting, since it shows the circumstances where the court will be willing to surmise what must have happened – sometimes to devastating effect.

Richard Godden



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