The Place of Private Nuisance in a Modern Law of Torts

Conor Gearty

doi:10.1017/S000819730010529X

The Place of Private Nuisance in a Modern Law of Torts

Published online by Cambridge University Press: 16 January 2009

Conor Gearty

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It is forty years since Professor Newark wrote despairingly of nuisance that “the subject as commonly taught comprises a mass of material which proves so intractable to definition and analysis that it immediately betrays its mongrel origins.” The “truest dictum in the books” was that of Erle C.J., who had once said in answer to the question, what is a nuisance?, that it was “immersed in undefined uncertainty.” Little has changed since 1949. Public and private nuisance still face life together in the textbooks, the universities and the law reports, despite the convincing evidence all round, much of it gathered in Newark's article, that they have little in common except the accident of sharing the same name. Making hoax bomb calls, obstructing the highway and holding a badly organised pop festival are as vulnerable to a public nuisance action as are the more traditional occurrences of special damage from atmospheric, water and noise pollution. Private nuisance has, if anything, become even more confused and confusing. Its chapter lies neglected in the standard works, little changed over the years, its modest message overwhelmed by the excitements to be found elsewhere in tort. Any sense of direction which may have existed in the old days is long gone. The action now encompasses not only smelly oil depots, noisy speedboats and the like but also dangerous natural hazards on the land and the only slightly less natural “user of premises for prostitution and the perambulations of the prostitutes and their customers.” Sometimes negligence is essential to liability, sometimes it is quite irrelevant.

Type: Articles
Information: The Cambridge Law Journal , Volume 48 , Issue 2 , July 1989 , pp. 214 - 242

DOI: https://doi.org/10.1017/S000819730010529X [Opens in a new window]
Copyright: Copyright © Cambridge Law Journal and Contributors 1989

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References

^{page 214 note 1} Newark, F. H., “The Boundaries of Nuisance” (1949) 65Google Scholar L.Q.R. 480, 480. This article contains an excellent analysis of the early development of nuisance. Much valuable work has also been done by Professor McLaren, J. P. S.. See his “Nuisance in Canada” in Linden, (ed.), Studies in Canadian Tort Law (1968), pp. 320–377Google Scholar and “The Common Law Nuisance Actions and the Environmental Battle—Well-Tempered Swords or Broken Reeds” (1972) 10 Osgoode Hall L. J. 505.

^{page 214 note 2} Newark, loc. cit. See Erle, C. J.'s undelivered judgment in Brand v. Hammersmith Railway (1867)Google Scholar L.R. 2 Q.B. 223, 247.

^{page 214 note 3} R. v. Madden [1975] 1 W.L.R. 1379. See now the Criminal Law Act 1977, s.51.

^{page 214 note 4} E.g. Jacobs v. London County Council [1950] A.C. 361, 375, per Lord Simonds.

^{page 214 note 5} A.G. for Ontario v. Orange Productions Limited (1971) 21 D.L.R. (3d) 257.

^{page 214 note 6} For an appraisal of the place of public nuisance in today's law, see Spencer, J. R., “Public Nuisance—A Critical Examination” [1989]Google Scholar C.L.J. 55.

^{page 215 note 7} Halsey v. Esso Petroleum Company Limited [1961] 1 W.L.R. 683.

^{page 215 note 8} Kennaway v. Thompson [1981] Q.B. 88.

^{page 215 note 9} Leakey v. National Trust for Places of Historic Interest or Natural Beauty [1980] Q.B. 485.

^{page 215 note 10} Thompson-Schwab v. Costaki [1956] 1 W.L.R. 335. The quotation is from the headnote. See also Laws v. Florinplace [1981] 1 All E. R.659.

^{page 215 note 11} Sedleigh-Denfield v. O'Callaghan [1940] A.C. 880.

^{page 215 note 12} Halsey v. Esso Petroleum, above.

^{page 215 note 13} British Celanese Limited v. Hunt [1969] 1 W.L.R. 959.

^{page 215 note 14} Stone v. Bolton [1950] 1 K.B. 202; S.C.M. (United Kingdom) Limited v. W. J. Whittall and Son (Limited) [1970] 1 W.L.R. 1017.

^{page 215 note 15} Public Health Act 1936, Part 3; Control of Pollution Act 1974, ss. 58, 59.

^{page 215 note 16} A. Lambert Flat Management Limited v. Lomas [1981] 2 All E.R. 280.

^{page 215 note 17} Salford City Council v. McNally [1976] A.C. 379.

^{page 215 note 18} Wycombe District Council v. Jeffways & Pilot Coaches [H.W.] Limited (1983) 81 L.G.R. 662.

^{page 215 note 19} For a summary, see National Coal Board v. Thorne [1976] 1 W.L.R. 543.

^{page 215 note 20} Williams, G. and Hepple, B., Foundations of the Law of Tort, 2nd ed. (1984), pp. 123–127Google Scholar.

^{page 215 note 21} See, e.g., British Road Services v. Slater [1964] 1 W.L.R. 498, 504, per Lord Parker C.J.

^{page 215 note 22} For an excellent survey of recent trends, and the law that has resulted, see Williams, D. G. T., “Developments in British Environmental Law” (1984) 24 Natural Resources Journal 511Google Scholar. See also the same author's “Energy Crisis: Policy Response” (1981) 12 Journal of Business Administration 281.

^{page 215 note 23} For a recent summary of the law, see Hughes, D., Environmental Law (London, 1986)Google Scholar.

^{page 216 note 24} Colls v. Home and Colonial Stores [1904] A.C. 179.

^{page 216 note 25} See Winfield and Jolowicz on Tort, 12th ed. (London, 1984), pp. 381–382.

^{page 216 note 26} There has been some recent movement on locus standi: see R. v. Inland Revenue Commissioners, ex parte National Federation of Self-Employed and Small Businesses Limited [1982] A.C. 617. A number of academic articles have examined these hurdles standing between the plaintiff and success in environmental litigation. See e.g. Crawford, T., “The Problems of Causation in Private Legal Remedies for Damage from Acid Rain” (1984) 17 Natural Resources Lawyer 413Google Scholar; Rosenberg, D., “The Causal Connection in Mass Exposure Cases: A ‘Public Law’ Vision of the Tort System” (1984) 97Google Scholar Harv. L. R. 849. The House of Lords has recently reaffirmed the commitment of the English courts to the view that the plaintiff must establish causation in all circumstances: Wilsher v. Essex Area Health Authority [1988] 2 W.L.R. 557. The Irish Supreme Court has restated the old rules in a major environmental case but has applied them in a very liberal way so as to benefit an individual plaintiff in his battle against a corporate polluter: Hanrahan v. Merck Sharp & Dohme (Ireland) Limited, Supreme Court, unreported, 5 July 1988.

^{page 216 note 27} For a very early example of the procedure, arising out of attempts to control the cholera epidemic of the time, see the Nuisances Prevention Acts of 1846 and 1847.

^{page 216 note 28} See particularly the Public Health Act 1936 and the Control of Pollution Act 1974.

^{page 217 note 29} Halsey v. Esso Petroleum Ltd. [1961] 1 W.L.R. 683; Tetley v. Chitty [1986] 1 All E.R. 663.

^{page 217 note 30} The outstanding argument for the continuance of private nuisance is one farmer's victory over a multi-million pound American chemicals plant in the Irish Supreme Court in July 1988: see Hanrahan v. Merck, Sharp & Dohme (Ireland) Ltd., above. The local authority was reluctant to act, in view of the number of jobs the factory had brought to the area.

^{page 217 note 31} Of course, it is perfectly possible that something that is a nuisance in the non-physical sense may also be a nuisance in the physical sense. The poisonous fumes from my neighbour's factory may not only prevent me from reclining in my garden; they may also destroy my plants. See St. Helen's Smelting Company v. Tipping (1865) 11 H.L.C. 642. The distinction is useful, though, because as will be argued below, different rules of liability should apply to each situation.

^{page 217 note 32} Such a case can easily be an environmental action, since many forms of pollution damage the land rather than those relaxing on it. Acid rain is an obvious example of this.

^{page 217 note 33} See further text to n. 36ff.

^{page 219 note 34} F. H. Newark, op. cit. n. 1 above, p. 481. This article is a most valuable guide to the old law.

^{page 219 note 35} Ibid. See also Winfield, P. H., “Nuisance as a Tort” (1932) 4 C.L.J. 189Google Scholar. Certain direct interferences are also classed as nuisances though these more closely resemble trespass: see Davey v. Harrow Corporation [1958] 1 Q.B. 60, and below n. 28.

^{page 219 note 36} (1698) 1 Ld. Raym. 264; 3 Ld. Raym. 250. Cf. Beaulieu v. Finglam (1401) Y.B. 2 Hen. 4, f. 18, pi. 6. See further the Fires Prevention (Metropolis) Act 1774.

^{page 220 note 37} (1837) 3 Bing N.C. 468.

^{page 220 note 38} Ibid., 475, per Tindal C. J.

^{page 220 note 39} Ibid., 474.

^{page 220 note 40} Ibid., 477.

^{page 220 note 41} [1894] A.C. 48 (P.C.) Cf. Hughes v. Percival (1883) L.R. 8 App. Cas. 443.

^{page 220 note 42} [1957] 1 Q.B. 496.

^{page 220 note 43} Ibid., 504, referring to Filliter v. Phippard (1847) 11 Q.B. 347.

^{page 220 note 44} See Winfield, P. H., “The History of Negligence in the Law of Torts” (1926) 42 L.Q.R. 184Google Scholar.

^{page 220 note 45} In Sochaki v. Sas [1947] 1 All E.R. 344, the action of a lodger damaged the property in which he was staying. Lord Goddard considered both negligence and Rylands v. Fletcher but did not mention nuisance. It is hard to see why the action should be different if he had been neighbour rather than a guest.

^{page 220 note 46} It is possible of course: the effects of the damage may not be observable.

^{page 221 note 47} [1969] 1 W.L.R. 959.

^{page 221 note 48} In Mulholland & Todd Limited v. Baker [1939] 3 All E.R. 253, a case involving fire damage to neighbouring property, P initially relied upon negligence, Rylands v. Fletcher and nuisance. The nuisance point was abandoned during the hearing.

^{page 221 note 49} The main report is at (1784) 2 Ld. Raym. 1089. See also 6 Mod. 311; Holt K.B. 500; 1 Salk. 21; 1 Salk. 360; 2 Salk. 770; 3 Ld. Raym. 324. See also Lambert and Olliott v. Bessey Sir T. Raym. 421; cf. Brent v. Haddon (1620) Cro.Jac. 556.

^{page 221 note 50} 2 Ld. Raym. 1089, 1090.

^{page 222 note 51} (1865) 3 H. & C. 774; (1866) L.R. 1 Ex. 265; (1868) L.R. 3 H.L. 330.

^{page 222 note 52} (1865) 3 H. & C. 774, 790.

^{page 222 note 53} Ibid., 792.

^{page 222 note 54} See, for example, Humphries v. Cousins (1877) 2 C.P.D. 239; Snow v. Whitehead (1884) 27 Ch.D. 588. With the expansion of negligence in recent years, its importance has declined. Cf. Victor Weston (Eire) Limited v. Kenny [1954] I.R. 191; Scully v. Boland [1962] I.R. 58.

^{page 222 note 55} Cooke v. Waring (1863) 2 H. & C. 332; Butlin v. Hunter (1862) 7 H. & N. 826.

^{page 222 note 56} See e.g. Carstairs v. Taylor (1871) L.R. 6 Ex. 217; Nichols v. Marsland (1875) L.R. 10 Ex. 255; Ross v. Fedden (1872) L.R. 7 Q.B. 661; Musgrove v. Pandelis [1919] 2 K.B. 43.

^{page 222 note 57} [1969] 1 W.L.R. 959.

^{page 222 note 58} Ibid., 968 per Lawton J.

^{page 222 note 59} Ibid., 969.

^{page 222 note 60} For a possible difference in relation to the burden of proof, see below n. 98.

^{page 223 note 61} These terms are more often found in the criminal law. See R. v. Hancock and Shankland [1986] A.C. 455 and R. v. Nedrick [1986] 1 W.L.R. 1025 on intention and R. v. Caldwell [1982] A.C. 341 on recklessness.

^{page 223 note 62} See Impress (Worcester) Ltd v. Rees [1971] 2 All E.R. 357: the oil tank owner will commit a statutory offence in these circumstances.

^{page 223 note 63} G. Williams and B. Hepple, op. cit. n. 20 above, p. 124n.

^{page 223 note 64} For D's liability where a trespasser or some natural event on his land causes damage to the land of his neighbour, see below text to n. 25ff. We are concerned for the moment solely with the legal consequences of D's own actions.

^{page 223 note 65} See above, the text to n. 36ff.

^{page 223 note 66} Home Brewery Company Limited v. William Davis and Company (Leicester Limited) [1987] Q.B. 339.

^{page 224 note 67} Hoare and Company v. McAlpine [1923] 1 Ch. 167.

^{page 224 note 68} See Newark, F. H., “Non-natural User and Rylands v. Fletcher” (1961) 24 M.L.R. 557Google Scholar.

^{page 224 note 69} (1876) 2 Ch.D. 692.

^{page 224 note 70} 70Ibid., 701, per Jessel M.R.

^{page 224 note 71} Ibid., 699.

^{page 224 note 72} (1878) 3 C.P.D. 168.

^{page 225 note 73} Ibid., 173, per Cotton L.J.

^{page 225 note 74} Ibid.

^{page 225 note 75} Ibid., 174.

^{page 225 note 76} See Newark, , “Non-natural User and Rylands v. Fletcher” (1961) 24 M.L.R. 557, 566–67Google Scholar.

^{page 225 note 77} (1885) 15 Q.B.D. 258.

^{page 225 note 78} Ibid., 260.

^{page 225 note 79} Ibid.

^{page 226 note 80} Peech v. Best and others [1931] 1 K.B. 1, 14, per Scrutton L.J.

^{page 226 note 81} (1900) 34 I. L.T.R. 88.

^{page 226 note 82} (1950) 100 L.J. 541.

^{page 226 note 83} Other cases include: Seligman v. Docker [1949] Ch. 53; Stearn v. Prentice Brothers Limited [1919] 1 K.B. 394; Brady v. Warren [1900] 2 I.R. 632; Foley v. Berthoud (1903) 37 I.L.T.R. 123; Plater v. Town of Collingwood (1968) 65 D.L.R. (2d) 492; Bland v. Yates (1914) 58 S.J. 612. Note particularly O'Gorman v. O'Gorman [1903] 2 I.R. 573, where there is an interesting difference of opinion as to how the action should be labelled—see Barton J. at 583–85; Kenny J. at 582–83 and Wright J.'s cryptic intervention at 588. Finally, it should perhaps be mentioned that there was traditionally no liability where an animal was naturally on the land, though this must now be doubted after Leakey v. National Trust, on which, see further the text to n. 64ff, below.

^{page 226 note 84} (1865) 11 H.L.C. 642. See also Imperial Gas Light and Coke Company v. Broadbent (1859) 7 H.L.C. 600.

^{page 227 note 85} (1865) 11 H.L.C. 642, 650–51.

^{page 227 note 86} Salvin v. North Brancepeth Coal Limited (1874) 9 Ch. App. 705; Smith v. Thackerah (1866) L.R. 1 C.P. 566; Walter v. McKinnon Industries Limited [1949] 4 D.L.R. 739; Russell Transport Limited v. Ontario Malleable Iron Company Limited [1952] 4 D.L.R. 719; Kent v. Dominion Coal and Steel Corporation (1964) 49 D. L.R. (2d) 241.

^{page 227 note 87} [1961] 1 W.L.R. 683.

^{page 227 note 88} Ibid., 691.

^{page 227 note 89} [1923] 1 Ch. 167. Cf. Robinson v. Kilvert (1889) 41 Ch.D. 88; J.P. Porter Co. v. Bell [1955] 1 D.L.R. 62.

^{page 227 note 90} Walter v. Selfe (1851) 4 De G. and Sin. 315.

^{page 228 note 91} [1923] 1 Ch. 167, 176.

^{page 228 note 92} [1936] 2 K.B. 468.

^{page 228 note 93} [1932] A.C. 562.

^{page 228 note 94} Ibid., 472.

^{page 228 note 95} Christie v. Davey [1893] 1 Ch. 316. Of course, the state of mind of D will always be relevant to some extent even where the traditional concentration on the impact of the harm to P is predominant. The court's view of the sensitivity of P or the tolerability of that to which he is subjected will be influenced by the social utility of the behaviour by D that is causing the disturbance.

^{page 228 note 96} Cf. the approach of the Canadian courts, where similar cases to Hollywood Silver Fox Farm have been discussed in terms of the tort of negligence: MacGibbon v. Robinson [1953] 2 D.L.R. 689; Nova Mink Limited v. Trans-Canada Airlines [1951] 2 D.L.R. 241; Rattray v. Daniels (1959) 17 D.L.R. (2d) 134; Grandellv. Mason [1953] 3 D.L.R. 65.

^{page 228 note 97} We must also remember Rylands v. Fletcher, of course, which is now probably irredeemably sundered from nuisance.

^{page 229 note 98} The burden of proof is said to differ between the two torts. “[T]he great merit of framing the case in nuisance as distinct from negligence,” according to Lord Denning M. R., is that “it greatly affects the burden of proof:” see Morton v. Wheeler, The Times, 1 February 1956. The lower the “duty” and the “breach” hurdles in negligence (and they would be pretty low here), the closer to nuisance the burden becomes. It may be, therefore, that this distinction would not matter so much in this context; see Radstock Cooperative and Industrial Society Limited v. Norton Radstock Urban District Council [1968] Ch. 605, 633–634. The burden of proving causation remains the same for both. A second question is whether the label of one's action affects the availability of defences like volenti non fit injuria and contributory negligence: see the interchange between counsel in Leakey v. National Trust [1980] Q.B. 485, 503–504.

^{page 230 note 99} The factory owner, D1, and the car driver, D2, can be made to appear the same by analysing them in the following way. Suppose each has a goal: D1 wants to run a good factory so as thereby to make larger profits; D2 wants to get to his destinations as fast as possible so as to have more time at home and at work. Now, suppose further that each of these goals involves incidental harm: in the case of Dl, to the property adjacent to his factory; in the case of D2, to the pedestrians who get in the way. Such damage may be recognised by them as the overwhelmingly probable consequence of their behaviour (i. e. in law, intended by them), or it may be that they are reckless as to its occurrence, or it may be that they do not foresee it happening when a reasonable man in their situation would have done so. In all three cases, they are both liable. The factory owner's position is one that we understand, even if we feel he should be stopped or made to pay compensation. We do not often think of the car-driver's ulterior goal, however, because it never occurs to us that such a trivial interest could be put into the scales against the causing of personal injury or death. Suppose, though, that the car-driver is a scientific expert racing recklessly to a bomb site in order to defuse a nuclear warhead primed to go off in a matter of minutes, or a fire chief driving dangerously fast so that he can take control of an underground conflagration in inner London?

^{page 230 note 1} [1925] 1 K.B. 671.

^{page 230 note 2} Ibid., 679, per Branson J.

^{page 230 note 3} Ibid., 673–674. See also Robinson v. Kilvert (1889) 41 Ch.D. 88, where, however, st. Helen's was not cited. See also Nikka Overseas Agency v. Canada Trust Company (1961) 31 D.L.R. (2d) 368 [B.C.S.C.].

^{page 231 note 4} [1970] 1 Q.B. 612, 644. See also Atiyah, P. S., Accidents, Compensation and the Law, 3rd ed.. (1980), p. 164Google Scholar: “nuisance as a source of liability for physical injuries to person or property is again almost completely coincidental with negligence at the present day.”

^{page 231 note 5} Acton v. Blundell (1842) 12 M. & W. 324; Chasemore v. Richards (1859) 7 H.L. Cas. 349; Bradford Corporation v. Pickles [1895] A.C. 587; Popplewell v. Hodkinson (1869) L.R. 4 Ex. 248; English v. Metropolitan Water Board [1907] 1 K.B. 588. Cf. Jordeson v. Sutton, Southcoates & Prypool Gas Company [1899] 2 Ch. 217; Trinidad Asphalt Company v. Ambard [1899] A.C. 594. The law was stricter where the water was polluted rather than simply abstracted: Hodgkinson v. Ennor (1863) 4 B. & S. 229; Bollard v. Tomlinson (1885) 29 Ch.D. 127. For a very recent example of the operation of these laws, see Stephens v.Anglia Water Authority [1987] 1 W.L.R. 1381: note that the case was treated as a negligence rather than a nuisance problem. Some Commonwealth jurisdictions have taken a different line: Penno v. Government of Manitoba (1975) 64 D.L.R. (3d) 256 [Manitoba Court of Appeal]; Pugliese v. National Capital Commission (1977) 79 D.L.R. (3d) 592 [Ontario Court of Appeal]. The Pugliese case contains an excellent comparative summary of developments in Canada, Australia and the United States.

^{page 231 note 6} Smith v. Kenrick (1849) 7 C.B. 515; Baird v. Williamson (1863) 15 C.B.N.S. 375, from the headnote of which the quotation is taken. It was to reconcile these two cases that Lord Cairns L.C. developed his principle of liability for non-natural use in Rylands v. Fletcher, see (1868) L.R. 3 H.L.330, 338–339.

^{page 231 note 7} Rouse v. Gravelworks Limited [1940] 1 K.B. 489. This case has been doubted: see Leakey v. National Trust for Places of Historic Interest or Natural Beauty [1980] Q.B. 485, 522 per Megaw L.J.

^{page 231 note 8} [1970] 1 W.L.R. 161.

^{page 231 note 9} Ibid., 178.

^{page 232 note 10} Ibid.

^{page 232 note 11} Ibid. The Commonwealth cases are equally vague on the distinction between nuisance and negligence in this sort of situation. See, for example, Pugliese v. National Capital Commission, op. cit., 616–619 per Howland, J.A.; Penno v. Government of Manitoba, op. cit., 275–278, per Matas, J.A.

^{page 232 note 12} [1970] 1 W.L.R. 161, 178.

^{page 232 note 13} [1895] A.C. 587.

^{page 232 note 14} [1987] Q.B. 339. See J. Spencer [1987] C.L.J. 205.

^{page 233 note 15} Ibid., 349.

^{page 233 note 16} Ibid., 351, citing Overseas Tankship (U.K.) Limited v. Miller Steamship Company Pty. [ The Wagonmound (No. 2)] [1967] 1 A.C. 617.

^{page 233 note 17} Ibid.

^{page 233 note 18} Ibid., quoting the well known definition in Winfield, , Tort, 8th ed., 1967, p. 353Google Scholar.

^{page 233 note 19} Ibid.

^{page 233 note 20} Ibid., 352, adopting the words of Windeyer, J. in Gartner v. Kidman (1962) 108 C.L.R. 12, 49Google Scholar.

^{page 233 note 21} Ibid.

^{page 233 note 22} Ibid.

^{page 233 note 23} The deputy judge did not consider whether it was not also an unreasonable user of land though he must have taken for granted that it was. Langbrook Properties Limited v. Surrey County Council, above, was not cited.

^{page 233 note 24} Ibid., 355.

^{page 234 note 25} [1987] A.C. 241

^{page 234 note 26} Ibid., 274.

^{page 234 note 27} King v. Liverpool City Council [1986] 1 W.L.R. 890; P. Perl (Exporters) Limited v. Camden London Borough Council [1984] Q.B. 342; Lamb v. Camden London Borough Council [1981] O.B. 625. Where the action of the third party is negligent rather than intentional, the same considerations apply: H & N Emanuel Limited v. Greater London Council [1971] 2 All E.R. 835.

^{page 234 note 28} Davey v. Harrow Corporation [1958] 1 Q.B. 60; Smith v. Giddy [1904] 2 K.B. 448; Crowhurst v. Amersham Burial Board (1878) 4 Ex. D. 5. For the law in Ireland, see Middleton v. Humphries (1912) 47 I.L.T.R. 160.

^{page 234 note 29} See below text to n. 69ff.

^{page 234 note 30} (1871) L.R. 7 Q.B. 31.

^{page 235 note 31} [1894] 2 Q.B. 281.

^{page 235 note 32} (1890) 24 Q.B.D. 656.

^{page 235 note 33} Ibid., 657, per Lord, Coleridge C.J., applied in Pontardawe Rural District Council v. Moore Gwyn [1929] 1 Ch. 656Google Scholar.

^{page 235 note 34} Nichob v. Marstand (1875) L.R. 10 Ex. 255.

^{page 235 note 35} [1940] A.C. 880. See also the dissenting judgment of Scrutton, L.J. in Job Edwards Limited v. Birmingham Navigation Proprietors [1924]Google Scholar 1 K.B. 341. The case has been applied in Australia in Montana Hotels Pty Ltd. v. Fasson Pty Ltd. (1986) 69 ALR 258.

^{page 235 note 36} 5th ed. (1920), pp. 258–265.

^{page 235 note 37} [1940] A.C. 880, 893.

^{page 235 note 38} Ibid., 894.

^{page 235 note 39} Ibid., 910.

^{page 235 note 40} Ibid., 913.

^{page 236 note 41} Ibid. Italics added. See also Pemberton v. Bright [1960] 1 W.L.R. 436.

^{page 236 note 42} Ibid., 919–920.

^{page 236 note 43} Ibid., 896.

^{page 237 note 44} Ibid., 920, per Lord Porter.

^{page 237 note 45} Ibid., 896. See also Lord Atkins' cautionary remarks at 818.

^{page 237 note 46} [1932] A.C. 562, 580, per Lord Atkin.

^{page 237 note 47} [1967] 1 A.C. 645.

^{page 237 note 48} Ibid., 657. His Lordship was summarising the effect of dicta in Overseas Tankships (U.K.) Limited v. Miller Steamship Company Pty. Limited [The Wagonmound (No. 2)] [1967] 1 A.C. 617.

^{page 237 note 49} Ibid., 660–661, per Lord Wilberforce, giving the judgment of the Privy Council.

^{page 237 note 50} Ibid., 661–662.

^{page 237 note 51} Ibid., 657.

^{page 238 note 52} Ibid.

^{page 238 note 53} See the comments of McKinnon, L.J. in the Court of Appeal, Sedleigh-Denfield v. St. Joseph's Society for Foreign Missions [1939]Google Scholar 1 All E.R. 725, 729.

^{page 238 note 54} My thanks to Tony Weir for drawing this point to my attention.

^{page 238 note 55} [1924] 1 K.B. 341.

^{page 238 note 56} Saxby v. The Manchester, Sheffield and Lincolnshire Railway Company (1869) L.R. 4 C.P. 198.

^{page 238 note 57} Barker v. Herbert [1911] 2 K.B. 633.

^{page 238 note 58} St. Annes Well Brewery Company v. Roberts (1928) 140 L.T. 1; Wilkins v. Leighton [1932] 2 Ch. 106.

^{page 238 note 59} [1897] 1 Ch. 560.

^{page 238 note 60} [1940] A.C. 880, 899 per Lord Atkin.

^{page 239 note 61} Ibid., 903–904.

^{page 239 note 62} [1933] 1 K.B. 551.

^{page 240 note 63} Ibid., 556–557, omitting references.

^{page 240 note 64} [1980] Q.B. 485. See Neath Rural District Council v. Williams [1951] 1 K.B. 115; Davey v. Harrow Corporation [1958] 1 Q.B. 60.

^{page 240 note 65} Ibid., 516 per Megaw, L.J., quoting from Goldman v. Hargrove [1967]Google Scholar 1 A.C. 645, 661–662.

^{page 240 note 66} Ibid., 524, per Megaw L.J. Note the inclusion of personal injury, something to which nuisance liability does not generally attach.

^{page 240 note 67} Ibid., 514, per Megaw, L.J.McMullin, J.'s approach in French v. Auckland City Corporation [1974]Google Scholar 1 N.Z.L.R. 340 was not dissimilar.

^{page 240 note 68} Ibid., 522.

^{page 241 note 69} (1981) 79 L.G.R. 449.

^{page 241 note 70} [1958] 1 Q.B. 60. See text to n. 28ff. above.

^{page 241 note 71} (1981) 79 L.G.R. 449, 461, per Stephenson L.J.

^{page 241 note 72} (1984) 83 L.G.R. 152. See also Greenwood v. Portwood [1985] C.L.Y. 2500.

^{page 241 note 73} Ibid., 176.

^{page 241 note 74} Ibid., 183.

^{page 241 note 75} See text to n. 47ff. above.

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