| 89. | This reasoning, which is echoed in some academic writing and the Canadian case of Motherwell v. Motherwell (1976) 73 D.L.R. (3rd) 62 which the Court of Appeal followed, is based upon a fundamental mistake about the remedy which the tort of nuisance provides. It arises, I think, out of a misapplication of an important distinction drawn by Lord Westbury L.C. in St. Helen's Smelting Co. v. Tipping 11 H.L.C. 642, 650. In that case, the plaintiff bought a 1300 acre estate in Lancashire. He complained that his hedges, trees and shrubs were being damaged by pollution from the defendants' copper smelting works a mile and a half away. The defendants said that the area was full of factories and chemical works and that if the plaintiff was entitled to complain, industry would be brought to a halt. Lord Westbury said:
"My Lords, in matters of this description it appears to me that it is a very desirable thing to mark the difference between an action brought for a nuisance upon the ground that the alleged nuisance produces material injury to the property, and an action brought for a nuisance on the ground that the thing alleged to be a nuisance is productive of sensible personal discomfort. With regard to the latter, namely the personal inconvenience and interference with one's enjoyment, one's quiet, one's personal freedom, anything that discomposes or injuriously affects the senses or the nerves, whether that may or may not be denominated a nuisance, must undoubtedly depend greatly on the circumstances of the place where the thing complained of actually occurs. If a man lives in a town, it is necessary that he should subject himself to the consequences of those operations of trade which may be carried on in his immediate locality, which are actually necessary for trade and commerce, and also for the enjoyment of property, and for the benefit of the inhabitants of the town and of the public at large. If a man lives in a street where there are numerous shops, and a shop is opened next door to him, which is carried on in a fair and reasonable way, he has no ground for complaint, because to himself individually there may arise much discomfort from the trade carried on in that shop. But when an occupation is carried on by one person in the neighbourhood of another, and the result of that trade, or occupation, or business, is a material injury to property, then there unquestionably arises a very different consideration. I think, my Lords, that in a case of that description, the submission which is required from persons living in society to that amount of discomfort which may be necessary for the legitimate and free exercise of the trade of their neighbours, would not apply in circumstances the immediate result of which is sensible injury to the value of the property." St. Helen's Smelting Co. v. Tipping was a landmark case. It drew the line beyond which rural and landed England did not have to accept external costs imposed upon it by industrial pollution. But there has been, I think, some inclination to treat it as having divided nuisance into two torts, one of causing "material injury to the property," such as flooding or depositing poisonous substances on crops, and the other of causing "sensible personal discomfort" such as excessive noise or smells. In cases in the first category, there has never been any doubt that the remedy, whether by way of injunction or damages, is for causing damage to the land. It is plain that in such a case only a person with an interest in the land can sue. But there has been a tendency to regard cases in the second category as actions in respect of the discomfort or even personal injury which the plaintiff has suffered or is likely to suffer. On this view, the plaintiff's interest in the land becomes no more than a qualifying condition or springboard which entitles him to sue for injury to himself. | |
| The perceived gap in Khorasandjian v. Bush [1993] Q.B. 727 was the absence of a tort of intentional harassment causing distress without actual bodily or psychiatric illness. This limitation is thought to arise out of cases like Wilkinson v. Downton [1897] 2 Q.B. 57 and Janvier v. Sweeney [1919] 2 K.B. 316. The law of harassment has now been put on a statutory basis (see the Protection from Harassment Act 1997) and it is unnecessary to consider how the common law might have developed. But as at present advised, I see no reason why a tort of intention should be subject to the rule which excludes compensation for mere distress, inconvenience or discomfort in actions based on negligence: see Hicks v. Chief Constable of the South Yorkshire Police [1992] 2 All E.R. 65. The policy considerations are quite different. I do not therefore say that Khorasandjian v. Bush [1993] Q.B. 727 was wrongly decided. But it must be seen as a case on intentional harassment, not nuisance.
Negligence, Nuisance and Rylands v Fletcher:
The struggle for simplicity continues
(3 November 2000)
The Honourable Justice Chambers
Three years ago, the leaders of this august organisation were rash enough to ask me to
address you on the topic of negligence, nuisance, and Rylands v Fletcher, and in
particular on the inter-relationship of the three torts. Obviously because no one
understood it then, I have been asked to repeat the lecture today, perhaps in the vain
hope that my new job may have given me the ability to make comprehensible what
was left incomprehensible last time. I regret that their hope in this regard is
hopelessly misplaced.
Before I begin, I want to say that I think this is a very important topic for the
insurance industry because the fact situations which give rise to possible claims in
nuisance and Rylands v Fletcher frequently involve insurers, usually on both sides.
My other introductory comment is that I appreciate that I am speaking to a mixed
audience of both insurance company officers and insurance lawyers. This address
will be pitched at the level of the insurance company officers and the lawyers will just
have to try to keep up.
I realise from looking at the list of attendances which Frank Rose gave me that, while
many of you were here when last I addressed you, there are also many new faces. In
those circumstances, I should perhaps begin today by summarising briefly what my
thesis was 3 years ago. The intention then is to see whether any of my predictions as
to the future development of the law in this area have come true.
The theme of my address 3 years ago was the need for simplicity in this area of the
law of torts. Tort law has become far too complicated. There is a need for clear
enunciation of simple principles. I also tried to persuade you of three rules of thumb.
They were:2
• There will never be a case where a plaintiff will succeed in Rylands v
Fletcher without also succeeding in nuisance.
• There will rarely be a case where a plaintiff would succeed in nuisance
without also succeeding in negligence.
• The old action for liability for the escape of fire is now to be determined as
a negligence action.
In particular, in formulating those rules of thumb, I referred to what were then two
recent cases, one a decision of the House of Lords Cambridge Water Co. v Eastern
Counties Leather plc [1994] 2 AC 264, and the other a decision of the High Court of
Australia, Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 529.
Although both those decisions have approached the issues with which I am concerned
today somewhat differently, both were certainly consistent with my three rules of
thumb.
Well, what has happened since then? The first general point to note is how many
nuisance cases there have been, especially in New Zealand and the UK in the last 3
years. That in itself indicates that the struggle for simplicity is not yet won. Where
the law is clear, where the principles are clear, there are usually few cases. That is
because factual disputes against a clear legal framework are generally settled. The
number of cases coming through and the nature of the arguments being addressed
suggest that the highest courts have not articulated clearly enough what the principles
should be. Nuisance is not an area like negligence where the fact situations vary
hugely. The fact situations in the nuisance are relatively confined. It ought to be
possible to make clear principles governing their legal resolution.
A second point I should make is that you should be very wary of what I say today.
People who specialise in an area and then publish their views, as I have done in this
area, tend to view all developments in their area against their own theories. Cases3
which don’t fit the theory are either skewed to make them fit or ignored or declared
wrong. So be wary of that.
The final general point I would make is that you will find me somewhat more
cautious and subdued than I was 3 years ago. That is because I do not want to adopt
such an extreme position today that I am prevented from ever having the opportunity
to determine a nuisance case. This concern is not far-fetched. There is a recent
decision of the Scottish High Court of Justiciary which sounds warning bells to
judicial officers who speak or write extra-judicially. In the case concerned, Hoekstra
v HM Advocate [2000] TLR 298, the Scottish High Court was concerned with
whether a judge who had sat on a criminal appeal should have sat. The appeal in
question had involved drug dealing and the point in the appeal had turned on a
particular right said to have been conferred on the accused by the European
Convention on Human Rights. The appellate judge had written an article on the
European Convention which had used imagery overwhelmingly negative to the
Convention. The judge, in his article, had painted a picture of the Convention as
something that threatened danger to the Scottish legal system. In the article, the judge
showed that he was hostile to the idea that persons who were suspected by the police
of being drug dealers should have rights of privacy, including a right against covert
surveillance, under the Convention. The Scottish High Court held that, because of the
views expressed by the judge, he should not have sat on that appeal. The tone of the
article was such that it gave rise to a legitimate apprehension that the judge could not
deal with such an argument impartially. The Scottish High Court of Justiciary
ordered that the appeal had to be heard afresh by a new panel.
So that is a cautionary tale for all judges about the need for moderation in whatever
they may say extra-judicially.
Well, enough by way of background. I want to look at four New Zealand cases and
two English cases. The purpose of my enquiry is to alert you to recent developments
in this area which may have implications for insurance companies. The second
purpose is to see whether the rules of thumb hold true.4
The first case with which I wish to deal is Autex Industries Ltd v Auckland City
Council [2000] NZAR 324. When I spoke last time, this case had just been sent off to
the Court of Appeal by Master Kennedy-Grant. I expressed the view that the claim
for summary judgment in Rylands v Fletcher must surely be doomed. That prediction
proved true.
The facts were very simple. An Auckland City Council water main burst some 8
metres from Autex’s premises. Water caused damage to Autex’s premises, plant,
equipment and stock. Autex sued the Council in respect of its losses. Two causes of
action were pleaded. The first pre-supposed strict liability. The second pleaded
negligence. In respect of the first cause of action, Autex sought summary judgment.
Autex argued that this was a Rylands v Fletcher case; therefore negligence did not
have to be proved.
The Court of Appeal divided. The majority ruled that the case was not appropriate for
summary judgment. The majority left open what the law should be in this area. They
said that whether the old case of Irvine & Co. Ltd v Dunedin City Corporation [1939]
NZLR 741 should continue to be followed needed appropriate evidence which was
not before them. The Court of Appeal said that there should be expert evidence as to
the likely economic and social implications of alternative legal rules. The court
should not make these public policy decisions simply relying on intuitive assessments.
I agree wholeheartedly with the majority on that point. Defence lawyers far too often
attempt to strike out pleadings at the cutting edge. It is usually much better to run the
case and have a solid foundation of fact, including appropriate expert evidence, before
one determines in which direction the law should move.
The minority judgment in Autex would have allowed summary judgment to be
entered. The minority disagreed with the High Court of Australia in Burnie. The
minority was persuaded by Professor Fleming’s well-known defence of a claim in
strict liability for activities which present an abnormal risk. I regret to say I find the
minority’s judgment unconvincing. Professor Fleming has lived most of his life in
California while continuing to write successive editions of his Australian text on torts.
Living in the United States has influenced him greatly in this area of the law because5
the United States has embraced a doctrine of strict liability for extra-hazardous
activities. That doctrine has never formed part of English law or New Zealand law. It
was expressly disavowed by the House of Lords in Read v J Lyons & Co. Ltd [1946]
AC 169. This is not the place for a detailed discussion as to why a theory of strict
liability for extra-hazardous activities should not be adopted. That was, after all, the
view of only the minority. In my view, it would be a retrograde step for us to go
down that line.
In summary, therefore, Autex leaves the question open as to whether New Zealand
will follow the High Court of Australia. Autex is certainly not inconsistent with my
three rules of thumb. At the same time, it does not provide support for them either.
Autex subsequently settled. I would question whether anything was achieved by the
attempt to get summary judgment. A case involving only $200,000 was bound to
settle and would have settled without an expensive foray to the Court of Appeal.
The second case to which I refer is Langdon v Bailey, a very recent decision of
Panckhurst J, decided on 8 September: unreported, AP3-00 (Timaru Registry). The
facts were simple. Mr Bailey was driving his truck along a public road. Sparks from
it caused a fire in the tinder-dry vegetation on the roadside. The fire then spread to
Mr Langdon’s farm and caused damage to trees, fences and pasture. In the District
Court, Mr Langdon’s claim for damages failed because the judge found that it was not
foreseeable that the truck would emit sparks and cause a fire. Mr Langdon’s appeal
was dismissed.
Mr Langdon’s argument was that the District Court Judge had been wrong because
liability should have been found in private nuisance and liability in private nuisance is
strict. Panckhurst J dismissed the appeal on the following grounds.
First, private nuisance is essentially a tort concerned with competing interests in land.
Mr Bailey was not using his land in any particular way: he was merely driving down
the highway. The heresy of Mahon J’s views in Paxhaven Holdings Ltd v AttorneyGeneral [1974] 2 NZLR 185 and Clearlite Holdings Ltd v Auckland City Corporation
[1976] 2 NZLR 729 has finally been put to rest. On this point, Panckhurst J
undoubtedly was correct.6
Panckhurst J’s second point was that nuisance requires some ‘repetitive activity which
causes damage to the plaintiff’s land or his enjoyment of it’. With respect, Panckhurst
J was not correct on that point. It is well established that there can be liability in
nuisance for a one-off act which causes damage.
Thirdly, Panckhurst J held that, assuming the cause of action in nuisance was
available, which, of course, he had found it was not, he would still have concluded
that the judge’s finding concerning foreseeability was fatal to the claim. On that
topic, Panckhurst J was quite correct. It is now well established beyond any doubt that
there cannot be liability in nuisance unless the harm was reasonably foreseeable.
The result in Langdon v Bailey is support for my second rule of thumb: ‘There will
rarely be a case where a plaintiff would succeed in nuisance without also succeeding
in negligence.’ Mr Langdon failed in negligence because the harm was not
foreseeable. He failed in nuisance for exactly the same reason.
The third case to which I wish to refer is another decision of the Court of Appeal:
Hamilton v Papakura District Council [2000] 1 NZLR 265. In this case, the Papakura
District Council distributed the local town water supply. Watercare Services Ltd
provided the water. Mr and Mrs Hamilton, who were hydroponic growers of
tomatoes, owned three properties on which they had greenhouses. Two of the
properties were serviced by the town water supply. The tomatoes at those two
properties began to show symptoms of damage, including leaf curling and burning.
Other growers in the area were similarly affected. The tomatoes at the other property
did not show any signs of damage. The Hamiltons issued proceedings against the
Council and Watercare. They alleged that there were toxic herbicide residues present
in the water. In the High Court it was held that the Hamiltons had not proved on the
balance of probabilities that there were toxic herbicide residues present in the water.
They appealed to the Court of Appeal. Their appeal was dismissed.
First, the Court of Appeal held that the harm that occurred was not on the facts
foreseeable. That was enough to dispose of the claim, whatever tortious cause of
action was relied on. Again, the case provides strong authority for the proposition7
that there will be no liability in Rylands v Fletcher, nuisance or negligence unless the
harm that occurred or harm of that type was reasonably foreseeable. The case also
establishes that there is no difference in the foreseeability test between nuisance and
negligence. The moment one states that as a proposition, one realises that it is absurd
to continue talking about nuisance or Rylands v Fletcher as strict liability torts. They
are not.
Secondly, the case is very important in that it confirms that Rylands v Fletcher was
simply an example of a nuisance claim. Hamilton provides strong support for my first
rule of thumb: ‘There will never be a case where a plaintiff will succeed in Rylands v
Fletcher without also succeeding in nuisance.’ The corollary of that rule of thumb, of
course, is that there is no point in having separate causes of action pleading Rylands v
Fletcher and nuisance. The case is also supportive of the second rule of thumb that
there will rarely be a case where a plaintiff would succeed in nuisance without also
succeeding in negligence. In this case, the Hamiltons failed in negligence. They also
failed in nuisance.
It is true that the Court of Appeal said that negligence is not an element in a nuisance
action. In one sense that is a correct proposition. But, for the reasons I explained in
my earlier paper, it is a mistake to think that nuisance is a better tort from the
plaintiff’s perspective than negligence. Nuisance comes to the same result as
negligence but by a different form of words. It is tempting to repeat the argument I
made on this topic 3 years ago because I remain convinced that it is right. But in the
interests of time, I will press on.
Hamilton is apparently going on appeal to the Privy Council.
The final New Zealand case to which I wish to refer is Varnier v Vector Energy Ltd, a
decision of Salmon J decided earlier this year: unreported, CP 82-99 (Auckland
Registry), 16 March 2000. The facts were interesting. Mr Varnier and Ms Ravell had
an interest in a unit in Birdwood Crescent in Parnell. In 1998, following the power
crisis in the Auckland CBD, Vector erected the emergency power lines which are still
such a blot on our landscape. These emergency power lines run very close to Mr
Varnier’s unit. The plaintiffs alleged that the power lines emitted electro-magnetic8
fields in excess of acceptable levels and that as a consequence the unit could not be
occupied for residential accommodation because occupants suffered headaches and
general unwellness. It was also said that electronic equipment within the house, such
as television, telephone and computers, were interfered with. The claim was brought
in nuisance, trespass, negligence and Rylands v Fletcher. Vector applied for summary
judgment on the grounds that none of the claims could succeed. Salmon J dismissed
the application for summary judgment. The case should proceed to trial. It
subsequently settled, which is why I can talk about it safely.
It appears from the judgment that a principal argument was whether Vector had a
defence of statutory authority. The defence was said to arise from s 62 of the
Electricity Act 1992. Salmon J referred to the guidelines in Todd, The Law of Torts in
New Zealand (2
nd
ed, para. 9.6.2) as to when statutory authority could provide a
defence in tort. He concluded that he could not be satisfied that the immunity would
extend to protecting the line company from liability for this sort of damage. Again,
with respect to defence counsel involved in this case, it shows the folly of
unnecessary pre-trial applications.
I now wish to look at two interesting English cases. The first was Hunter v Canary
Wharf Ltd [1997] 2 All ER 426, a decision of the House of Lords. The case is
interesting from a New Zealand perspective, partly because our very own Lord Cooke
of Thorndon sat in the House of Lords – it was one of the first cases in which he did
sit – and also interesting because in part he dissented. There were two appeals heard
together. In the first appeal, the plaintiffs claimed that their homes were within a
shadow area for television reception caused by a tower block nearly 250 metres high
and over 50 metres square, which was built by the defendant developer. They said
that the television reception in their homes had been adversely affected and they
claimed damages in nuisance. The issue in that case was whether interference with
television reception was capable of constituting an actionable private nuisance.
In the second appeal, the plaintiff residents, not all of whom were householders,
claimed damages in nuisance against the defendant development corporation, London
Docklands Development Corp, for the deposit of substantial quantities of dust from
the construction of a road near their properties.9
Both cases came before the House of Lords on preliminary questions. In the
television case, the House of Lords held that interference with television reception
caused by the mere presence of a building was not capable of constituting an
actionable private nuisance. Subject to planning control, a person was free to build on
his or her own land unrestricted by the fact that the presence of his or her building
might of itself interfere with neighbours’ enjoyment of their land. More was required
than the mere presence of a neighbouring building to give rise to an actionable private
nuisance. It followed that the plaintiff’s claim in the television action was dismissed.
On that action, all their Lordships were united.
The result must be right. The defendant had used their land entirely lawfully. There
was nothing unreasonable in what they had done. You may say, ‘Well, it’s a bit tough
on the plaintiffs who couldn’t watch the tele’, but as Lord Goff of Chieveley pointed
out, there is, at least in London, the ready availability of cable television. As well,
there is satellite television. And indeed in the presence case, the problem was
eventually solved by the introduction by the BBC of a new relay station.
In the dust action, the issue was, who is entitled to sue in nuisance? There were a
large number of plaintiffs. Some of them were householders – freeholders, tenants.
Some were licensees. Other plaintiffs were people with whom householders shared
their home, for example spouses or partners, or children or other relatives. All of
them were claiming damages. Who could sue? At first instance Havery J held that
only those with a right to exclusive possession of the relevant property could sue. The
Court of Appeal disagreed. The Court of Appeal held that, provided the person was
in occupation of the property as a home, he or she had capacity to sue in private
nuisance. The House of Lords held by a majority that the Court of Appeal was wrong
and that Havery J had been right. Lord Cooke dissented. I would hope in this country
that our courts would follow Lord Cooke’s dissent. His view is certainly in line with
most academic commentary and also with some other New Zealand decisions. Lord
Cooke referred extensively to academic writings on this topic. That provoked a rather
snaky response from Lord Goff:10
‘Since preparing this opinion, I have had the opportunity of reading in draft
the speech of my noble and learned friend, Lord Cooke of Thorndon, and I
have noticed his citation of academic authority which supports the view that
the right to sue in private nuisance in respect of interference with amenities
should no longer be restricted to those who have an interest in the affected
land. I would not wish it to be thought that I myself had not consulted the
relevant academic writings. I have, of course, done so, as is my usual practice;
and it is my practice to refer to those which I have found to be of assistance,
but not to refer, critically or otherwise, to those which are not. In the present
circumstances, however, I feel driven to say that I found in the academic
works which I consulted little more than an assertion of the desirability of
extending the right of recovery in the manner favoured by the Court of Appeal
in the present case. I have to say … that I have found no analysis of the
problem; and, in circumstances such as this, a crumb of analysis is worth a
loaf of opinion.’
So take that, you academics!
The final case to which I wish to refer is Lippiatt v South Gloucestershire Council
[1999] 4 All ER 149. In this case, the defendant council owned a strip of land which
for 3 years was occupied by a group of travellers. The plaintiffs, who were tenant
farmers of adjacent land, brought proceedings against the council in which they
alleged that the travellers had frequently trespassed on their land, obstructed access to
a field, and carried out various activities on it, including dumping rubbish, leaving
excrement, and tethering animals. They alleged that the council had been aware of
the travellers’ presence on its strip of land and had tolerated it. The council moved to
strike out the claim on the grounds that it had no prospect of success. The English
Court of Appeal held that the claim was arguable and must go forward to trial. The
Court of Appeal held that an occupier of land could be liable in the tort of nuisance
for the activities on his or her licensees, even though the particular acts may have
taken place on the plaintiffs’ land. The point was that, on the alleged facts, the
defendant council had let people gather on its land. It was that act of tolerating their
presence and not forcing them to move on when complaints started coming in that
potentially rendered the council legally liable in nuisance. There was in fact an old
case on very similar facts to this: Attorney-General v Corke [1933] Ch 89. In my
view, that case was correctly decided and would have been similarly determined in
New Zealand.11
My conclusion, therefore, based on these cases – and they are merely a sampling of
cases in this area in the last 3 years – is that my rules of thumb remain intact. The
practical consequences of these rules of thumb are these.
1. There is no point pleading nuisance and Rylands v Fletcher as separate causes
of action.
2. If you don’t think you’ll get home in negligence, settle. Don’t think nuisance
will save you. The end result of the nuisance case is likely to be exactly the
same as the end result of the negligence case, even if the way the judge
expresses his or her reasons may differ slightly. The essential elements are the
same in any of these torts: Did the defendant cause the harm? Was the harm
reasonably foreseeable? Did the defendant act reasonably? Was the
defendant at fault?
3. Nuisance remains a separate tort even though the result will usually be the
same as in negligence. It remains essentially a mechanism for resolving
disputes between neighbouring land occupiers. The exact nature of the
possessory interest plaintiff and defendant must have is in some doubt in New
Zealand and presumably will not be finally resolved until our Court of Appeal
comes to consider the majority’s views in Hunter |
