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C. The legal principles governing public nuisance |
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C1 The nature of public nuisance |
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Public nuisance is a common law offence. Inheriting the jurisdiction from the office of Attorney-General, the Secretary for Justice may also move to restrain a public nuisance in a relator action brought on behalf of the public at large. Public nuisance is furthermore actionable as a tort by an individual who has been caused particular damage over and above the damage suffered by the public at large.[7] That is the basis of the present action. The ingredients of a public nuisance are the same for both the crime and the tort.[8] |
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While there is an overlap between the elements of public and private nuisance, they are causes of action which are different in kind. Private nuisance is a tort protecting property rights. It is concerned with the activities of the owner or occupier of property within the boundaries of his own land which may harm the interests of the owner or occupier of other land.[9] But while most reported public nuisance cases involve nuisances on or emanating from land or buildings, an interest in land is not an essential element of the tort. Neither the plaintiff (who will often, as in the present case, simply be a person using the public highway) nor the defendant (who may simply be someone who does an act creating a nuisance hazard) need have any interest in or relationship with any land or building. Such defendants (in both civil and criminal public nuisance cases) have included, for instance, a shipowner[10] and a demise charterer[11] of a vessel discharging oil into navigable waters; a person parking a lorry on the public highway;[12] and senders of racially offensive letters and letters containing salt which caused an anthrax scare.[13] |
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C2 Hazards which amount to public nuisances |
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A state of affairs which constitutes a public nuisance is one which endangers the lives, safety, health, property or comfort of the public; or obstructs the public in the exercise or enjoyment of any right that is common to members of the public. This is a proposition derived from a number of definitions approved by Lord Bingham of Cornhill in R v Rimmington.[14] I will refer to such a state of affairs as “the nuisance hazard”. |
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C3 Acts and omissions |
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A defendant may be held liable for public nuisance on the basis of his positive act or his omission. The present case has been approached on the basis of an omission on the part of the incorporated owners. In each case, the nuisance hazard which arises from the act or omission must be causative of particular injury to a member of the public. Certain differences necessarily exist in the rules applicable to acts and to omissions respectively. Lord Hoffmann put the need to differentiate between acts and omissions as follows:
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“There are sound reasons why omissions require different treatment from positive conduct. It is one thing for the law to say that a person who undertakes some activity shall take reasonable care not to cause damage to others. It is another thing for the law to require that a person who is doing nothing in particular shall take steps to prevent another from suffering harm from the acts of third parties ... or natural causes.”[15] |
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Where a nuisance hazard results from a positive act by the defendant, the basis of liability is relatively straightforward. But before a defendant’s omission is actionable, he must first have been under a legal duty to eliminate the nuisance hazard or to prevent it from causing harm to the public. The law must then recognize an entitlement on the part of an injured plaintiff to compensation for the defendant’s omission, which entitlement does not follow as a matter of course. |
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C4 Need for knowledge or presumed knowledge |
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The modern case-law establishes that a defendant can only be liable for public nuisance if he knew or ought reasonably to have known (in that the means of knowledge were reasonably available to him) that his act or omission would result in a nuisance hazard presenting a real risk of harm to the public. Where a defendant ought reasonably to have known of the risk, he may be said[16] to have the necessary “presumed knowledge”.
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(a) In Sedleigh-Denfield v O’Callaghan,[17] Lord Wright stated:
“Though the rule has not been laid down by this House, it has I think been rightly established in the Court of Appeal that an occupier is not prima facie responsible for a nuisance created without his knowledge and consent. If he is to be liable a further condition is necessary, namely, that he had knowledge or means of knowledge, that he knew or should have known of the nuisance in time to correct it and obviate its mischievous effects. The liability for a nuisance is not, at least in modern law, a strict or absolute liability.”
(b) In Overseas Tankship (UK) Ltd v Miller SS Co Pty, The Wagon Mound (No 2),[18] while acknowledging that negligence is not an essential element of nuisance (in the sense considered below), Lord Reid explained:
“... although negligence may not be necessary, fault of some kind is almost always necessary and fault generally involves foreseeability, eg, in cases like Sedleigh-Denfield v O’Callaghan the fault is in failing to abate the nuisance of the existence of which the defender is or ought to be aware as likely to cause damage to his neighbour.”
(c) In R v Rimmington,[19] Lord Bingham regarded the passage from Lord Wright’s judgment in Sedleigh-Denfield v O'Callaghan cited above as “what has come to be accepted as the test”. And Lord Rodger of Earlsferry approved the Court of Appeal’s decision in R v Shorrock,[20] holding “that a defendant landowner was responsible for a public nuisance which he knew or ought to have known (in the sense that the means of knowledge were available to him) would be the consequence of activities carried on by him on his land.”[21]
(d) One may also note that the Australian High Court has declared that the test for liability in public nuisance, at least as applied to highway cases, has been “absorbed by the principles of ordinary negligence”.[22] |
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It is furthermore established that, as with the tort of negligence, a defendant is not liable in public nuisance unless the injury caused to the plaintiff is of a foreseeable type.[23] |
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It follows from the above that it is now recognized that liability in public nuisance is not “strict” or “absolute”. Cases suggesting the contrary should no longer be followed. Technical distinctions (often difficult to draw) should no longer provide the basis for determining whether liability is strict or alternatively dependent on knowledge or presumed knowledge. |
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Thus, a distinction was drawn in Wringe v Cohen[24] (and followed in many cases[25]) between instances where the nuisance hazard was due to “want of repair” (when liability was said to be strict) and cases where the hazard was due to the act of a trespasser or to “a secret and unobservable operation of nature” or to a “latent defect” (when liability was said to depend on whether the defendant knew or ought to have known of the nuisance hazard). That distinction was adopted by Yuen JA below.[26] However, in The Wagon Mound (No 2),[27] having stressed the need for fault in public nuisance, Lord Reid, speaking for the Privy Council, went out of his way to say: “Their Lordships express no opinion about cases like Wringe v Cohen, on which neither counsel relied.” Of course, in a case where a property is in a dilapidated condition and plainly suffering from want of repair, it will generally not be difficult to establish knowledge or presumed knowledge of the nuisance hazard. |
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Other technical distinctions which equally should no longer serve as a basis for determining whether or not liability is strict include distinctions between hazards which abut upon or overhang a highway (where liability has been treated as strict, as with the collapsing wall in Mint v Good[28]) or merely near a highway (where it has not, like the Hawthorn tree in Salsbury v Woodland[29]); or between artificially made hazards (like the gas lamp in Tarry v Ashton[30])and natural hazards (like the tree branch in Noble v Harrison[31]) which overhang the highway. |
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Although in Mint v Good,[32] Denning LJ joined Somervell LJ in applying Wringe v Cohen[33] and holding that liability for public nuisances affecting users of the highway was strict, it is noteworthy that five years later, in the unreported case of Morton v Wheeler,[34] cited by Lord Reid in The Wagon Mound (No 2),[35] Lord Denning MR stated:
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“But how are we to determine whether a state of affairs in or near a highway is a danger? This depends, I think, on whether injury may reasonably be foreseen. If you take all the cases in the books, you will find that if the state of affairs is such that injury may reasonably be anticipated to persons using the highway it is a public nuisance.”
This received the Privy Council’s approval, Lord Reid commenting:
“So in the class of nuisance which includes this case [ie, a highway case] foreseeability is an essential element in determining liability.”[36] |
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In my view, the law has now evolved to the point where the question is simply whether the defendant knew or ought to have known of the relevant nuisance hazard. Thus, it must be shown that a defendant whose positive act creates the hazard knows or ought to know that it is the likely consequence of his act. And a defendant who is potentially liable on the basis of an omission must be shown to have had knowledge or presumed knowledge that a nuisance hazard is the likely consequence of his failure to carry out his applicable duty. |
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C5 Negligence not essential but liability is not strict |
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It is clear that negligence is not an essential element of public nuisance. However, this does not mean that liability is strict or absolute. It means that where a defendant does an act with knowledge or presumed knowledge that it may result in a nuisance hazard causing injury to the public, it is no answer for him to say that he took all reasonable care to avoid causing injury if his act turns out to be causative of a foreseeable type of harm. As Lord Goff of Chieveley put it:
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“... it is still the law that the fact that the defendant has taken all reasonable care will not of itself exonerate him from liability, the relevant control mechanism being found within the principle of reasonable user. But it by no means follows that the defendant should be held liable for damage of a type which he could not reasonably foresee; and the development of the law of negligence in the past 60 years points strongly towards a requirement that such foreseeability should be a prerequisite of liability in damages for nuisance, as it is of liability in negligence.”[37] |
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C6 Duty may be non-delegable but liability is not strict |
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It is also important not to confuse strict or absolute liability with liability arising under a non-delegable duty. Where a defendant is under a duty to nullify a nuisance (in circumstances discussed further below), that duty is non-delegable. He remains liable even though he has engaged an apparently competent independent contractor to eliminate the nuisance hazard if, through the latter’s negligence or otherwise, the hazard is not in fact removed, resulting in injury to the plaintiff. |
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The frequently cited case of Tarry v Ashton[38] is properly understood as illustrating the foregoing proposition and not, as is sometimes suggested, as an authority for strict liability in relation to injury caused by structures projecting over the highway. It was a case involving injury to a passer-by when a heavy gas lamp overhanging the pavement fell on her. The defendant occupier knew or ought to have known of the potentially dangerous condition of the lamp and was held liable because his duty was non-delegable, not because liability was strict. Blackburn J put it thus:
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“Now in the present case there is ample evidence that in August the defendant was aware that the lamp might be getting out of repair, and, it being his duty to put it in repair, he employs Chappell to do so. We must assume, I think, that Chappell was a proper person to employ; and I may observe that he was clearly not the defendant’s servant, as the jury say, but an independent contractor. But it was the defendant’s duty to make the lamp reasonably safe, the contractor failed to do that; and the defendant, having the duty, has trusted the fulfilment of that duty to another who has not done it. Therefore the defendant has not done his duty, and he is liable to the plaintiff for the consequences. It was his duty to have the lamp set right; it was not set right.”[39] |
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This was re-iterated by his Lordship in the House of Lords five years later in Charles Dalton v Henry Angus & Co,[40] citing Tarry v Ashton among other cases:
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“... a person causing something to be done, the doing of which casts on him a duty, cannot escape from the responsibility attaching on him of seeing that duty performed by delegating it to a contractor. He may bargain with the contractor that he shall perform the duty and stipulate for an indemnity from him if it is not performed, but he cannot thereby relieve himself from liability to those injured by the failure to perform it.” |
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In Salsbury v Woodland,[41] Widgery LJ rejected the argument that Tarry v Ashton was a strict liability highway case, explaining that it was concerned with a non-delegable duty:
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“[Counsel] argued that [Tarry v Ashton] illustrated the special sympathy with which the law regards passers-by on the highway. He said that it demonstrated that the law has always been inclined to give special protection to persons in that category and so supported his argument that any action adjacent to the highway might be subject to special rights. But, in my judgment, that is not so. Tarry v Ashton seems to me to be a perfectly ordinary and straightforward example of a case where the employer was under a positive and continuing duty to see that the lamp was kept in repair. That duty was imposed upon him before the contractor came and after the contractor had gone; and on the principle that such a duty cannot be delegated the responsibility of the employer in that case seems to me to be fully demonstrated.” |
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C7 Liability based on positive acts |
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Where alleged liability is based on a positive act, the defendant is liable if the act is his own or the act of someone for whom he is vicariously liable. It is not clear whether a defendant can be made liable in this context for the acts of an independent contractor for whom he is not vicariously liable. Without deciding the question, the better view seems to be that no such liability arises unless the independent contractor was engaged by the defendant with a view to discharging a non-delegable duty resting upon the defendant. |
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C8 Liability based on omissions |
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As noted above, an omission is only actionable in public nuisance if the defendant is under a duty to neutralize the nuisance hazard and fails to do so in circumstances where the law confers on the injured plaintiff the right to compensation from the defendant. This is necessarily the position since everyone, and not merely any particular defendant, will have omitted to act. A prerequisite of liability must be the identification of a duty on the defendant to prevent the nuisance from causing harm. That duty must then be one which the law regards as actionable on behalf of the injured plaintiff, as opposed to a duty owed only within the confines of some other scheme of liability, whether contractual or otherwise. As previously noted, such an actionable duty is non-delegable. How then does the law identify cases where omissions are so actionable? |
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C9 Occupiers of land: the criterion of control |
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In one class of cases, liability on the basis of an omission – that is, of having done nothing – is clearly established. Occupiers of land generally come under a duty to remove any nuisance hazard on or emanating from the land of which they have knowledge or presumed knowledge, or at least to prevent such hazard from injuring members of the public. If they fail to do so and injury results, they are liable in public nuisance for such omission. The law imposes that duty because occupation generally gives such immediate and practical control over the property that the occupier is justifiably made liable on the basis of omission. |
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Thus, in Wilchick v Marks and Silverstone,[42] Goddard J posed the question and supplied the answer as follows:
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“What is the principle that determines the liability for nuisance; why is it that prima facie it is the occupier who is liable? In Laugher v Pointer 5 B & C 547, 576; Abbott CJ said: ‘I have the control and management of all that belongs to my land or my house; and it is my fault if I do not so exercise my authority as to prevent injury to another.’” |
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And in L E Jones (Insurance Brokers) Ltd v Portsmouth City Council,[43] Dyson LJ explained the criterion for liability in this class of cases as follows:
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“... the basis for the liability of an occupier for a nuisance on his land is not his occupation as such. Rather, it is that, by virtue of his occupation, an occupier usually has it in his power to take the measures that are necessary to prevent or eliminate the nuisance. He has sufficient control over the hazard which constitutes the nuisance for it to be reasonable to make him liable for the foreseeable consequences of his failure to exercise that control and so remove the hazard.” |
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C9a Liability for omission of an owner-occupier |
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A number of sub-categories within this class may be identified. The paradigm instance where liability for omission is established involves owners in actual occupation of their land. Such persons can plainly be expected to have effective control, both physically and legally, over the property in question. Such an owner-occupier is subject to a duty to nullify the hazard if he knows or ought to know of its existence, even though he has done nothing to create it. The hazard may have been created by a trespasser[44] or a by “a secret and unobservable operation of nature”[45], but his omission to neutralize the hazard within a reasonable time[46] after acquiring the requisite knowledge or presumed knowledge is actionable if particular injury results to a member of the public. |
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C9b Liability of an owner in respect of vacant land |
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An owner may have left his land vacant. In such cases, although he is factually not in occupation, he is still regarded, by virtue of his ownership, as having sufficient control of the land to be made subject to liability on the basis of omission if he has the requisite knowledge or presumed knowledge. |
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A relator action succeeded, for instance, in AG v Tod Heatley,[47] where the owner’s vacant lot had been used by trespassers for dumping “dead dogs and cats, vegetable refuse, fish, offal, rubbish, and all kinds of filth” causing a public nuisance. Lindley LJ stated:
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“Now is it, or is it not, a common law duty of the owner of a vacant piece of land to prevent that land from being a public nuisance? It appears to me that it is. ... If the owner of a piece of land does permit it to be in such a state, eg smothered or covered with filth, that it is a public nuisance, he commits an indictable offence. He has no defence whatever to an indictment for such a public nuisance. It is no defence to say, ‘I did not put the filth on but somebody else did.’ He must provide against this if he can. His business is to prevent his land from being a public nuisance.”[48] |
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C9c Where land is occupied by a tenant |
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Another sub-category within this class involves land, not occupied by the owner but by a tenant (by which term I include any sub-tenant or licensee who may be in actual occupation). It is clear that the tenant, as occupier and therefore presumptively in immediate control of the premises, is in principle subject to liability by way of omission. Thus, in St Anne’s Well Brewery Company v Roberts,[49] Scrutton LJ, referring to a tenant, stated:
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“... it is clear law that the person liable for a nuisance on premises is surely the occupier.” |
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However, it may be quite unrealistic to expect the tenant, who may merely be a weekly or monthly tenant with modest resources to have the means to eliminate and to be required to assume sole responsibility for eliminating a nuisance hazard of which he knows or ought to know. The courts have therefore been ready to hold that the owner or landlord remains liable even though he has parted with possession to the tenant. Thus, in Wilchick v Marks and Silverstone,[50] a passer-by was injured by a shutter falling from a building and sued both the owners and the tenant. The landlords were found to have known of the hazard posed by the shutter and to have reserved to themselves the right to enter and do repairs if they thought fit. That was enough for the court to hold them liable along with the tenants. As Goddard J put it:
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“A property owner knows that his house if not repaired must at some time get into a dangerous state: he lets it to a tenant and puts him under no obligation to keep it repaired: it may be the tenant is one who from lack of means could not do any repairs. The landlord has expressly reserved to himself the right to enter and do necessary repairs: why then should he be under no duty to make it safe for passers by when he knows that the property is dangerous? The proximity is there: he has the right to enter and remedy a known danger. Is the injured person to be left in such a case only to a remedy against the tenant, who in this sort of tenancy, which commonly obtains only with regard to small properties, is probably in quite humble circumstances?”[51] |
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His Lordship concluded that the landlords “had the authority; they knew ... of the necessity to exercise it; they failed to do so and are accordingly liable.”[52] |
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Powers of entry and repair are readily implied where no express covenant exists. Thus, in Mint v Good,[53] a case involving a weekly tenancy, Somervell LJ commented that:
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“... in the absence of evidence which excluded it, there is no term which would be more easily and more necessarily implied by law in a tenancy of this kind than a right in the landlord to enter, or to re-enter, to examine the premises and to do necessary repairs. It must be in the contemplation of both parties to such a weekly tenancy that the tenant will not be called upon to do repairs.” |
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His Lordship concluded that:
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“... in the case of a weekly tenancy, business efficacy certainly will not be effected if the house is allowed to fall into disrepair and no one keeps it in reasonable condition; and it seems to me, therefore, necessary for business efficacy that the landlord should have the right which I have defined.” |
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This willingness to attribute liability to the landlord is not limited to cases involving short tenancies. Brew Bros Ltd v Snax (Ross) Ltd[54] concerned a 14 year lease where the landlords took a covenant from the tenant to keep the demised premises in good repair. The landlords were nonetheless held liable in respect of a wall which had become dangerous due to the undermining of its foundations because of seepage from defective drains. It was held that the landlords ought to have known of that condition prior to the lease when they had full control of the property, notwithstanding the tenant’s covenant to be responsible for repairs. Sachs LJ summarised the position, stressing the non-delegable nature of the owners’ duties as follows:
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“... the test of an owner’s duty to his neighbour now depends on the degree of control exercised by the owner in law or in fact for the purpose of repairs: see the judgment of Denning LJ in Mint v Good at p 528, as fully agreed by Birkett LJ at p 529. As regards nuisances of which he knew at the date of the lease, the duty similarly arises by reason of his control before that date. Once the liability attaches I can find no rational reason why it should as regards third parties be shuffled off merely by signing a document which as between owner and tenant casts on the latter the burden of executing remedial work. The duty of the owner is to ensure that the nuisance causes no injury - not merely to get somebody else’s promise to take the requisite steps to abate it.” |
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An owner can therefore usually be shown to have a sufficient degree of control to be made liable together with the tenant. |
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C10 Relevance of the defendant’s resources |
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As the foregoing cases indicate, in the context of liability by omission, a particular defendant’s resources are relevant to his potential liability. The law adopts the criterion of what is reasonable in all the circumstances. In asking whether a defendant ought to have known of a nuisance hazard, the financial and other resources realistically available to him are taken into account in deciding whether he ought reasonably in all the circumstances be regarded as having had the means of knowledge. Similarly, such resources are taken into account in deciding whether in all the circumstances he ought reasonably be held responsible for failing to neutralize a nuisance hazard of which he had knowledge or presumed knowledge. |
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In Goldman v Hargrave,[55] Lord Wilberforce put the principle thus:
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“...the law must take account of the fact that the occupier on whom the duty is cast has, ex hypothesi, had this hazard thrust upon him through no seeking or fault of his own. His interest, and his resources, whether physical or material, may be of a very modest character either in relation to the magnitude of the hazard, or as compared with those of his threatened neighbour. A rule which required of him in such unsought circumstances in his neighbour’s interest a physical effort of which he is not capable, or an excessive expenditure of money, would be unenforceable or unjust. One may say in general terms that the existence of a duty must be based upon knowledge of the hazard, ability to foresee the consequences of not checking or removing it, and the ability to abate it.” |
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In Leakey v National Trust,[56] Megaw LJ stated:
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“The criteria of reasonableness include, in respect of a duty of this nature, the factor of what the particular man - not the average man - can be expected to do, having regard, amongst other things, where a serious expenditure of money is required to eliminate or reduce the danger, to his means. Just as, where physical effort is required to avert an immediate danger, the defendant’s age and physical condition may be relevant in deciding what is reasonable, so also logic and good sense require that, where the expenditure of money is required, the defendant’s capacity to find the money is relevant. But this can only be in the way of a broad, and not a detailed, assessment; and, in arriving at a judgment on reasonableness, a similar broad assessment may be relevant in some cases as to the neighbour’s capacity to protect himself from damage...” |
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The question of resources is, however, only relevant in omission cases. As Lord Hoffmann pointed out in Stovin v Wise,[57] a defendant’s lack of resources to abate a nuisance caused by his own positive acts is in principle irrelevant:
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“[In Goldman v Hargreave]... Lord Wilberforce underlined the exceptional nature of the liability when he pointed out that the question of whether the landowner had acted reasonably should be judged by reference to the resources he actually had at his disposal and not by some general or objective standard. This is quite different from the duty owed by a person who undertakes a positive activity which carries the risk of causing damage to others. If he does not have the resources to take such steps as are objectively reasonable to prevent such damage, he should not undertake that activity at all.” |
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As we have seen, in omission cases, effective practical control over the property in which the nuisance hazard arises is the criterion for imposing a duty to remove the hazard in the class of cases mentioned above. It is consistent to regard a defendant’s lack of the resources objectively required to gain knowledge of and/or to eliminate the hazard as negating such control and so removing the basis of the duty. |
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C11 Actionable omissions unrelated to occupation: public authorities |
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Do any other categories exist where omissions are similarly actionable? In particular, is there a category in which a defendant who is not in occupation or control of land in which a nuisance hazard arises, can be made liable in public nuisance for doing nothing to abate that hazard? |
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The debate has focused in this context on public authorities. Attempts have been made to impose liability for public nuisance or negligence on a public authority for omitting to exercise its statutory powers or to carry out its statutory duties so as to remove a nuisance hazard of which it knows or ought to know, where injury to members of the public is the foreseeable consequence of inaction. Thus, there have been attempts to make highway authorities liable for failing to use statutory powers variously to remove a bank of land obstructing the views of drivers at a road junction;[58] to erect “Give Way” signs so as to give earlier warning of a road junction;[59] and to warn motorists not to drive too quickly when approaching a dangerous road configuration by painting a “Slow” sign on the road.[60] Similarly, public authorities having powers and duties to provide drainage services have been sued where inadequate sewers have resulted in overflows causing foreseeable damage to the plaintiffs’ land.[61] There may be cases where it is necessary to distinguish between statutory powers and statutory duties,[62] but for present purposes, unless that need arises, I shall simply refer to “statutory powers” as shorthand for both. |
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It should be emphasised that this is not a discussion about tortious liability for breach of statutory duty. A statutory provision may impose a duty in terms making non-compliance actionable as a tortious breach of statutory duty. Whether this is the effect of the provision is a matter of statutory construction. [63] But in the cases under discussion, it is not suggested that the statutory powers in question can be construed as giving such a remedy. Instead, the statutory powers are relied on for supplying a duty or power which forms the basis for an omission on the part of the relevant public authority to be actionable in public nuisance or negligence. |
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This is an evolving area of law, as Lord Steyn pointed out.[64] However, it is a category of proposed liability with a future which is at least uncertain. If, as a matter of statutory construction, the public authority’s failure to act does not constitute an actionable breach of statutory duty, why should the same omission provide a basis for establishing liability in negligence or public nuisance on its part? The intractability of this difficulty for proponents of liability has been noted on a number of occasions. Thus, in Stovin v Wise,[65]Lord Hoffmann stated:
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“As Lord Browne-Wilkinson said in X (Minors) v Bedfordshire County Council [1995] 2 AC 633, 739C in relation to the duty of care owed by a public authority performing statutory functions: ‘the question whether there is such a common law duty and if so its ambit, must be profoundly influenced by the statutory framework within which the acts complained of were done.’
The same is true of omission to perform a statutory duty. If such a duty does not give rise to a private right to sue for breach, it would be unusual if it nevertheless gave rise to a duty of care at common law which made the public authority liable to pay compensation for foreseeable loss caused by the duty not being performed.” |
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In Rice v Secretary of State for Trade and Industry,[66] after reviewing the authorities, May LJ stated:
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“... a statute containing broad target duties owed to the public at large, and which does not itself confer on individuals a right of action for breach of statutory duty, is unlikely to give rise to a common law duty of care, breach of which will support a claim by an individual for damages.” |
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In Gorringe v Calderdale Metropolitan Borough Council, [67] Lord Hoffmann took as his example O’Rourke v Camden London Borough Council,[68] where a homeless person’s action for damages on the ground that the council had failed in its statutory duty to provide him with accommodation was struck out on the ground that the statute gave rise to no private rights. His Lordship commented:
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“In the absence of a right to sue for breach of the statutory duty itself, it would in my opinion have been absurd to hold that the council was nevertheless under a common law duty to take reasonable care to provide accommodation for homeless persons whom it could reasonably foresee would otherwise be reduced to sleeping rough.” |
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In the same case,[69] Lord Scott of Foscote went so far as to hold that the absence of a right of action for breach of statutory duty meant that no common law duty was capable of arising:
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“In my opinion, if a statutory duty does not give rise to a private right to sue for breach, the duty cannot create a duty of care that would not have been owed at common law if the statute were not there. If the policy of the statute is not consistent with the creation of a statutory liability to pay compensation for damage caused by a breach of the statutory duty, the same policy would, in my opinion, exclude the use of the statutory duty in order to create a common law duty of care that would be broken by a failure to perform the statutory duty.” |
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Even if the proposed doctrine is not at present quite as definitively interred as Lord Scott would have it, it plainly cannot presently be regarded as established.[70] It is at least true to say that it can only be in exceptional circumstances (if at all) that any such liability can arise.[71] It is also clear that the mere existence of a statutory power which is causally relevant to the plaintiff’s injury cannot give rise to common law liability (even if the public authority has the needed knowledge or presumed knowledge). Even if liability can arise, something more is required. But there is no agreement as to what such additional ingredients might be. In these circumstances, it is unnecessary and would be speculative to attempt further analysis of this proposed category. |
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I should, however, emphasise that this discussion concerns attempts to impose liability on public authorities for omission. It is not concerned with the liability which public authorities attract like other persons where they perform acts which negligently or otherwise unlawfully cause damage, unless their liability is excluded by statute. This was stressed by Lord Hoffmann in Gorringe[72]in the following terms:
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“We are not concerned with cases in which public authorities have actually done acts or entered into relationships or undertaken responsibilities which give rise to a common law duty of care. In such cases the fact that the public authority acted pursuant to a statutory power or public duty does not necessarily negative the existence of a duty. A hospital trust provides medical treatment pursuant to the public law duty in the National Health Service Act 1977, but the existence of its common law duty is based simply upon its acceptance of a professional relationship with the patient no different from that which would be accepted by a doctor in private practice. The duty rests upon a solid, orthodox common law foundation and the question is not whether it is created by the statute but whether the terms of the statute (for example, in requiring a particular thing to be done or conferring a discretion) are sufficient to exclude it. The law in this respect has been well established since Geddis v Proprietors of the Bann Reservoir (1878) 3 App Cas 430.” |
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