England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION
Master Leslie

		Royal Courts of Justice Strand, London, WC2A 2LL
		08/05/2008

Lord Justice Dyson:

Introduction

1. The 18 claimants were all born between 1986 and 1999 with deformities of the upper limbs. Between 1983 and 1989, Corby Borough Council ("the Council") acquired approximately 680 acres of land ("the Land") in Corby, Northamptonshire from the British Steel Corporation with a view to reclamation and redevelopment. It was heavily contaminated. The claimants allege that their mothers, who lived close to the Land, were exposed during the embryonic stage of their pregnancies to toxic materials in the course of the Council's reclamation and decontamination programme and that this exposure caused the deformities.
2. On 15 June 2006 Group Particulars of Claim were served. This is an elaborate and rather difficult document. The case as then pleaded was based on negligence alone. By their defence, the Council admitted the duty of care, but denied any breach. They also denied that the claimants' limb deformities were caused by the exposure of the claimants' mothers to toxic materials emanating from the Land.
3. The Council applied to strike out parts of the Group Particulars of Claim on the grounds that they disclosed no reasonable cause of action and/or were an abuse of process. On 23 March 2007, with a view to obtaining clarification of the claimants' case, Master Leslie sensibly ordered them to serve additional points of claim setting out their allegations of breach of duty and how the breaches were alleged to have caused the injuries.
4. In response to this order, on 27 April 2007 the claimants served additional points of claim. At paragraph 7, they pleaded particulars of negligence under 14 sub-paragraphs. But they also introduced allegations of breach of statutory duty (sections 33(1)(c) and/or 34(1)(b) of the Environmental Protection Act 1990) and public nuisance. The Council did not object to the introduction of the claim for breach of statutory duty. They did, however, object to the introduction of the claim in public nuisance. They said that, as a matter of law, damages for personal injury cannot be recovered for public nuisance. They applied to Master Leslie to strike out the claim in public nuisance.
5. In a judgment given on 25 June 2007, the master said that this was a "developing area of the law" and he was not satisfied that the claim in public nuisance had no real prospects of success. Accordingly, he dismissed the Council's application to strike out the claim in public nuisance.
6. The Council sought permission to appeal. Foskett J gave permission but, in view of the importance of the point, he ordered that the appeal should be heard by the Court of Appeal.

The background facts

7. For the purposes of this appeal, it is not necessary to set out the facts in any detail. But I need to say a little more than I have already said so that the nature of the allegations can be better understood. The Land includes three sites to which reference is made in the Group Particulars of Claim. The Deene Quarry Tip site is approximately 188 acres in area and is situated to the north east of Corby. It was constructed by the Council to take contaminated waste generated by the reclamation works. The Soothills/Sootbanks site is approximately 27 hectares in area and is situated to the south east of Corby. Some of the heavily contaminated material was transported by road from the Soothills/Sootbanks site to the Deene Quarry site. The Willowbrook North site is to the south of the Deene Quarry site. It too was heavily contaminated. Some of the material from the Willowbrook site was also transported to the Deene Quarry site. Some remained in situ and was used as backfill for various reclamation contracts. The Soothills/Southbanks and Willowbanks sites were the original industrial sites which had to be cleared.

The allegations of negligence in outline

8. Although there are 14 particulars of negligence pleaded at paragraph 7 of the additional particulars of claim, for present purposes they can be distilled into the following. It is alleged that the Council were negligent in causing or permitting (i) the windborne escape from 1985 onwards of toxic materials into the atmosphere from the sites to which I have referred; (ii) the disturbance of solid material during the reclamation operations leading to its carriage as dust or small particles in the air; (iii) the vaporisation of volatile fluids from the sites leading to chemicals being carried as vapours in the air; (iv) the spreading of toxic sludges along roads by vehicles during the reclamation work; and (v) the use of dozens of lorries to transport substantial quantities of contaminated waste from the Soothills and Sootbanks sites to the Deene Quarry site without taking any or any adequate steps to protect persons in the surrounding area (including the claimants' mothers) from the effects of the escape of the toxic waste.

The plea of public nuisance

9. The public nuisance claim is pleaded in these terms:

"11. Further, the reclamation programme arose directly from the Defendant's use and/or control and/or occupation of the various sites which made up the former Steel Works complex. The Defendant allowed toxic material to escape from the Deene Quarry, Willowbrook North, and Soothills and Southbanks sites into the community and surrounding area and/or allowed the spread of contaminated liquids and toxic sludges on to and along the public highway by vehicles during the reclamation works above which thereby endangered the health of the public and caused personal injury to the Claimants and their mothers.

12. In the premises, the Defendant is guilty of a public nuisance."

The Council's argument

10. Mr Utley concedes that it has long been accepted that damages for personal injury are recoverable in public nuisance and that there are many cases both at first instance and in the Court of Appeal in which such damages have been awarded. He submits, however, that the recoverability of such damages has never been in issue and, therefore, it has never been the subject of a reasoned decision: it has always been assumed that damages for personal injury are recoverable in public nuisance. He argues that, in the light of the decisions of the House of Lords in Hunter v Canary Wharf Limited [1997] AC 655 and Transco plc v Stockport MBC [2003] UKHL 61, [2004] 2 AC 1, it can now clearly be seen that this assumption is wrong and that previous cases in which personal injury damages have been awarded for public nuisance have been wrongly decided. This is because (to use the language of Professor Newark's seminal article "The Boundaries of Nuisance" (1949) 65 LQR 480, 489) in public nuisance, as in private nuisance, "the interest of the plaintiff which is invaded is not the interest of bodily security, but the interest of liberty to exercise rights over land in the amplest manner".
11. Mr Utley accepts that the right to recover damages for personal injury in public nuisance was not expressly rejected by the House of Lords in either of the two decisions on which he relies. That is not surprising since in neither case in the House of Lords was the claim based on public nuisance and in neither case was there a claim for damages for personal injury. In Hunter, the claim by one plaintiff was for damages for negligence and private nuisance for interference with reception of television broadcasts in their homes; the claim by the other plaintiff was for damages for negligence and private nuisance in respect of deposits of dust on their properties caused by the construction of a road. In Transco, the claim was for damages under the rule in Rylands v Fletcher (1868) LR 3 HL 330 for the cost of repair to a gas main necessitated by the collapse of an embankment as a result of the escape of water from a fractured pipe.
12. Mr Utley submits, however, that previous authorities in this court and in lower courts where personal injury damages have been awarded in public nuisance cannot stand with these two decisions and should no longer be followed. Professor Newark's article argues that personal injury damages should not be recoverable in public nuisance and Mr Utley submits that the two decisions of the House of Lords approved his reasoning. The question that arises in this appeal is whether the claimants should be permitted to amend their particulars of claim to advance their claim in public nuisance. Mr Utley accepts that the only basis on which the amendment can be disallowed is that such a claim would have no real prospects of success. It is not suggested that the Council would be prejudiced by the amendment.

Discussion

13. It is clearly established that damages for personal injury cannot be recovered for private nuisance. This is because private nuisance is a tort based on the interference by one occupier of land with the right in or enjoyment of land by another: see, for example, Hunter per Lord Lloyd of Berwick at p 696D and per Lord Hoffmann at p 706F-H. The same applies to claims under the rule in Rylands v Fletcher which is a sub-species of private nuisance: see Transco per Lord Bingham of Cornhill at [9]: "the claim cannot include a claim for death or personal injury, since such a claim does not relate to any right in or enjoyment of land".
14. It is essential to Mr Utley's argument to show that the House of Lords has approved Professor Newark's thesis that personal injury damages cannot be recovered in public nuisance. It is convenient, therefore, to start by examining his article.
15. Professor Newark explained at pp 481-2 how the essence of what we now call the tort of private nuisance was a "tort directed against the plaintiff's enjoyment of rights over land". Thus, the idea that an action for nuisance could be used as a remedy for personal injuries never occurred to lawyers of Bracton's day or for long after. "That such an idea did eventually come to be held was the result of an incautious obiter dictum which was let fall in the Common Pleas in 1535". Interference with the public's right of way along a highway was something different from a nuisance. It was a "purpresture, an unlawful encroachment against the king, and enquirable of by the king's justices....and thus was born the public nuisance". Of the incautious obiter dictum, Professor Newark said:

"And then Fitzherbert J. went on to give an illustration which sent subsequent generations wrong in their law: 'As if a man make a trench across the highway, and I come riding that way by night, and I and my horse together fall in the trench so that I have great damage and inconvenience in that, I shall have an action against him who made the trench across the road because I am more damaged than any other man'. At this point we have moved into the realm of personal injuries and away from the original conception of nuisance."

16. He then traced the succeeding history. Until about 1840, claims for personal injuries caused by an obstruction in the highway were usually actions on the case which were conceived as actions for negligence. In about 1840, a change took place and the word "nuisance" began to appear in judgments. Professor Newark said: "the type of case concerning cellar flaps and the like was transferred from the realm of negligence to that of nuisance" (p 486). He described the consequences as "varied, far-reaching and unfortunate". He identified 5 such consequences. At p 488, he said:

"Finally, the appearance of the cellar flap, etc., cases in the realm of nuisance led to the erroneous belief that an action for nuisance is a suitable remedy for recovering damages for personal injury. This is a heresy which is equally offensive to the legal historian and the jurisprudent. In true cases of nuisance the interest of the plaintiff which is invaded is not the interest of bodily security but the interest of liberty to exercise rights over land in the amplest manner. A sulphurous chimney in a residential area is not a nuisance because it makes householders cough and splutter but because it prevents them taking their ease in their gardens. It is for this reason that the plaintiff in an action for nuisance must show some title to realty. Likewise, it is because the plaintiff must show some act which disturbs the actual or prospective enjoyment of rights over land that we have the rule that the true nuisance should normally have some degree of permanence about it. And if it be objected that nothing can be more disturbing to one's enjoyment than a broken head or shattered limb, it can be answered that personal injuries resulting from the forceful application of the defendant's fist are no less disturbing, but no one supposes that an assault and battery can be brought under the head of 'Nuisance'.

Because we mortals are earthbound the personal injuries which we suffer must necessarily occur while we are exercising rights in land, but that fact does not convert every personal injury into a nuisance. However, the unfortunate legacy of Fitzherbert's dictum has been the supposition that there are some personal injuries which can be regarded as nuisances. Once this belief is rooted out not only will it be possible to state the law of nuisance in a rational form; not only will it be possible to disentangle nuisance from the tort of negligence; but, best of all, the pleader who feels it a duty to try to bolster up a doubtful case of negligence by adding a count in nuisance will be driven out of business.

What can be done to straighten out the position? It is conceived that without going outside any principle laid down by the highest tribunal one could restore the law of nuisance to the right track from which Fitzherbert J. diverted it in 1535; and to start this reformation we are prepared, in the spirit of the old reformers, to nail the following theses to the doors of the Law Courts and to defend them against all comers:

(1) The term "nuisance" is properly applied only to such actionable user of land as interferes with the enjoyment by the plaintiff of rights in land.

(2) Since the true nuisance is a tort to the enjoyment of rights in land it follows that damage to the person or chattels of the plaintiff cannot by itself amount to a nuisance. The proper remedies for damage to the person or to chattels are the actions of trespass and negligence."

17. I can now come to the two House of Lords decisions. In Hunter, Lord Goff of Chieveley started his discussion of the right to sue in private nuisance at p 687D. He quoted part of the passage at p 488-89 of Professor Newark's article which I have set out above and said that the thesis that the term "nuisance" is properly only applied to such actionable user as interferes with the enjoyment by the plaintiff of rights of land is borne out by many authoritative statements in the cases. Lord Goff then reviewed a number of private nuisance cases and concluded at p 692C that "an action in private nuisance will only lie at the suit of a person who has a right to the land affected". He continued at p 692D:

"The question therefore arises whether your Lordships should be persuaded to depart from established principle, and recognise such a right in others who are no more than mere licensees on the land. At the heart of this question lies a more fundamental question, which relates to the scope of the law of private nuisance. Here I wish to draw attention to the fact that although, in the past, damages for personal injury have been recovered at least in actions of public nuisance, there is now developing a school of thought that the appropriate remedy for such claims as these should lie in our now fully developed law of negligence, and that personal injury claims should be altogether excluded from the domain of nuisance. The most forthright proponent of this approach has been Professor Newark, in his article in (1949) 65 L.Q.R. 480 from which I have already quoted. Furthermore, it is now being suggested that claims in respect of physical damage to the land should also be excluded from private nuisance: see, e.g., the article by Mr. Conor Gearty on "The Place of Private Nuisance in a Modern Law of Torts on" [1989] C.L.J. 214. In any event, it is right for present purposes to regard the typical cases of private nuisance as being those concerned with interference with the enjoyment of land and, as such, generally actionable only by a person with a right in the land. Characteristic examples of cases of this kind are those concerned with noise, vibrations, noxious smells and the like. The two appeals with which your Lordships are here concerned arise from actions of this character.

For private nuisances of this kind, the primary remedy is in most cases an injunction..."

18. Lord Hoffmann said at p 707H:

"So far as the claim is for personal injury, it seems to me that the only appropriate cause of action is negligence. It would be anomalous if the rules for recovery of damages under this head were different according as to whether, for example, the plaintiff was at home or at work. It is true, as I have said, that the law of negligence gives no remedy for discomfort or distress which does not result in bodily or psychiatric illness. But this is a matter of general policy and I can see no logic in making an exception for cases in which the discomfort or distress was suffered at home rather than somewhere else."

19. In Transco, Lord Hoffmann said this in relation to personal injury at [35]:

"In some cases in the first half of the 20th century plaintiffs recovered damages under the rule [in Rylands v Fletcher] for personal injury: Shiffman v St John of Jerusalem [1936] 1 All ER 557; Hale v Jennings Bros [1938] 1 All ER 579 are examples. But dicta in Read v J Lyons & Co Ltd cast doubt upon whether the rule protected anything beyond interests in land. Lord Macmillan (at pp 170-171) was clear that it had no application to personal injury and Lord Simonds (at p 180) was doubtful. But I think that the point is now settled by two recent decisions of the House of Lords: Cambridge Water Co v Eastern Counties Leather plc [1994] AC 264, which decided that Rylands v Fletcher is a special form of nuisance and Hunter v Canary Wharf Ltd [1997] AC 655, which decided that nuisance is a tort against land. It must, I think, follow that damages for personal injuries are not recoverable under the rule."

20. In my judgment, these passages do not bear the weight which Mr Utley seeks to place on them. In so far as they relate to the tort of public nuisance, the observations are obiter dicta because, as I have said, none of the claims in either case was in public nuisance and they did not include claims for damages for personal injury. The high watermark for Mr Utley's argument is the passage in Lord Goff's speech which I have quoted above. But, in my view, this passage comes nowhere near to being a clear statement that damages for personal injury should no longer be recoverable in public nuisance. Lord Goff merely said that there is "now developing a school of thought" that personal injury claims should be altogether excluded from the domain of nuisance and that Professor Newark is the foremost proponent of this approach. He also said that Mr Gearty had suggested that claims in respect of physical damage to land should be excluded from private nuisance. There is nothing in the passage to indicate that Lord Goff agreed either with the developing school of thought or Mr Gearty's suggestion both of which, if adopted, would have involved an important change in law which had been established and regularly applied for a long time. If Lord Goff had intended to agree with either or both proposals for a change in the law, he would surely have said so expressly and given at least brief reasons for doing so. Instead, he used no more than neutral language to describe the ideas of Professor Newark and Mr Gearty. Furthermore, Lord Goff continued by saying: "In any event, it is right for present purposes to regard the typical cases of private nuisance as being those concerned with interference with the enjoyment of land...". This sentence suggests that, in the immediately preceding passage, Lord Goff was not intending to say anything definitive about public nuisance.
21. The passage from the speech of Lord Hoffmann in Hunter does not purport to say anything about public nuisance. The whole of the speech is dealing only with private nuisance. Since the appeals were in relation to private nuisance and not public nuisance, this is not surprising. With the qualification that Rylands v Fletcher is a special form of private nuisance, the same comment can be made about the passage from the speech of Lord Hoffmann in Transco to which I have referred above.
22. In my judgment, therefore, the long-established principle that damages for personal injury can be recovered in public nuisance has not been impliedly reversed by either of these two decisions of the House of Lords. Indeed, the principle was not even criticised in any of their lordships' speeches. This is not surprising in view of what was in issue in these cases and the differences between public and private nuisance (see further [27] to [30] below). The most that can be said is that Hunter has raised the serious possibility that the House of Lords may in the future adopt the reasoning of Professor Newark and change the law.
23. I readily accept that the House of Lords may decide to take that course. But it is not open to this court to do so. Mr Utley is right to concede that, subject to his argument as to the effect of the two House of Lords decisions, the present state of the law is that personal injury damages can be recovered in public nuisance: see, for example, Buckley, Law of Negligence 4th edition (2005) para 14.01, Kodilinye, Public Nuisance and Particular Damage in the Modern Law (1986) 6 Legal Studies p 182 and Spencer, Public Nuisance-A Critical Examination (1989) CLJ p 73-75.
24. In any event, in my judgment it is not self-evident that the law should be changed and that Professor Newark is necessarily right to regard the proposition that such damages are recoverable as a "heresy". It is important to have in mind the true nature of public nuisance. In R v Rimmington and R v Goldstein [2005] UKHL 63, [2006] 1 AC 459, Lord Bingham of Cornhill gave the following valuable summary of the origins and history of nuisance:

"5. The origins and nature of nuisance have been the subject of detailed scholarly research which need not for present purposes be rehearsed: see Winfield, "Nuisance as a Tort", (1932) 4 C LJ 189; F H Newark, "The Boundaries of Nuisance", (1949) 65 LQR 480; J Loengard, "The Assize of Nuisance: Origins of an Action at Common Law" [1978] CLJ 144. It seems clear that what we would now call the tort of private nuisance, recognised in the Assize of Nuisance, provided a remedy complementary to that provided by the Assize of Novel Disseisin. As Holdsworth succinctly puts it (A History of English Law, 5th ed (1942), vol III, p 11),

"The novel disseisin was directed to secure an undisturbed possession: the assize of nuisance to secure its free enjoyment."

By the 15th century an action on the case for private nuisance was recognised. Thus the action for private nuisance was developed to protect the right of an occupier of land to enjoy it without substantial and unreasonable interference. This has remained the cardinal feature of the tort, as recently affirmed by the House in Hunter v Canary Wharf Ltd [1997] AC 655. The interference complained of may take any one of many different forms. What gives the tort its unifying feature (see Fleming, The Law of Torts, 9th ed, (1998), p 457) is the general type of harm caused, interference with the beneficial occupation and enjoyment of land, not the particular conduct causing it.

6. It became clear over time that there were some acts and omissions which were socially objectionable but could not found an action in private nuisance because the injury was suffered by the local community as a whole rather than by individual victims and because members of the public suffered injury to their rights as such rather than as private owners or occupiers of land. Interference with the use of a public highway or a public navigable river provides the best and most typical example. Conduct of this kind came to be treated as criminal and punishable as such. In an unpoliced and unregulated society, in which local government was rudimentary or non-existent, common nuisance, as the offence was known, came to be (in the words of J R Spencer, "Public Nuisance - A Critical Examination", [1989] CLJ 55, 59) "a rag-bag of odds and ends which we should nowadays call 'public welfare offences'". But central to the content of the crime was the suffering of common injury by members of the public by interference with rights enjoyed by them as such. I shall, to avoid wearisome repetition, refer to this feature in this opinion as "the requirement of common injury".

7. Unusually, perhaps, conduct which could found a criminal prosecution for causing a common nuisance could also found a civil action in tort. Since, in the ordinary way, no individual member of the public had any better ground for action than any other member of the public, the Attorney General assumed the role of plaintiff, acting on the relation of the community which had suffered. This was attractive, since he could seek an injunction and the abatement of the nuisance was usually the object most desired: see Spencer, op. cit., pp 66-73. It was, however, held by Fitzherbert J, as early as 1536 (YB 27 Hy VIII. Mich. pl.10) that a member of the public could sue for a common or public nuisance if he could show that he had suffered particular damage over and above the ordinary damage suffered by the public at large. To the present day, causing a public nuisance has been treated as both a crime and a tort, the ingredients of each being the same."

25. Lord Bingham then considered various definitions of the crime of public nuisance including that to be found in para 31-40 of the 2005 edition of Archbold, Criminal Pleading, Evidence and Practice:

"A person is guilty of a public nuisance (also known as common nuisance), who (a) does an act not warranted by law, or (b) omits to discharge a legal duty, if the effect of the act or omission is to endanger the life, health, property, morals, or comfort of the public, or to obstruct the public in the exercise or enjoyment of rights common to all Her Majesty's subjects."

26. At [36], he said that he would accept the offence as defined in Archbold (save for the reference to morals) as "clear, precise, adequately defined and based on a discernible rational principle".
27. It seems to me that it is at least arguable that Professor Newark was wrong to describe a public nuisance as a "tort to the enjoyment of rights in land". The definition of the crime of public nuisance says nothing about enjoyment of land and some public nuisances undoubtedly have nothing to do with the interference with enjoyment of land. As Lord Bingham said, the ingredients of the crime and the tort are the same. A public nuisance is simply an unlawful act or omission which endangers the life, safety, health, property or comfort of the public. As was said in Salmond and Heuston on the Law of Torts (21st edition 1986): "Public and private nuisances are not in reality two species of the same genus at all. There is no generic conception which includes the crime of making a bomb-hoax and the tort of allowing one's trees to overhang the land of a neighbour".
28. Professor Newark's response seems to be that, because we are mortals and earthbound, the personal injuries we suffer as a result of a public nuisance must necessarily occur while we are exercising rights in land (p 489). In a sense this is true, if the phrase "exercising rights in land" is given the generous interpretation for which Professor Newark contends, i.e. the liberty to exercise rights over land "in the amplest manner". It can be said that a person who suffers personal injury must be in some physical place when the injury is caused and, unless he is a trespasser, he is exercising a right over land when he is in that place, even if only as a licensee.
29. But even if that is true, it does not follow that the right which is interfered with in a public nuisance case is properly to be regarded as a right to enjoy property. The essence of the right that is protected by the tort of private nuisance is the right to enjoy one's property. It does not extend to a licensee: see Hunter. The essence of the right that is protected by the crime and tort of public nuisance is the right not to be adversely affected by an unlawful act or omission whose effect is to endanger the life, safety, health etc of the public. This view is reflected in the American Law Institute, Restatement of the Law, Second, Torts 2d (1979) chapter 40 para 821B (h) which states: "Unlike a private nuisance, a public nuisance does not necessarily involve interference with use and enjoyment of land".
30. In these circumstances, it is difficult to see why a person whose life, safety or health has been endangered and adversely affected by an unlawful act or omission and who suffers personal injuries as a result should not be able to recover damages. The purpose of the law which makes it a crime and a tort to do an unlawful act which endangers the life, safety or health of the public is surely to protect the public against the consequences of acts or omissions which do endanger their lives, safety or health. One obvious consequence of such an act or omission is personal injury. The purpose of this law is not to protect the property interests of the public. It is true that the same conduct can amount to a private nuisance and a public nuisance. But the two torts are distinct and the rights protected by them are different.
31. On the other hand, I acknowledge that Professor Newark's article presents a powerful argument in support of the proposition that personal injury damages should only be recoverable in negligence and that it is an argument which the House of Lords may accept.

Conclusion

32. For the reasons that I have given, I do not consider that it is open to this court to decide that damages for personal injury are not recoverable in public nuisance. The fact that the law may be developed by the House of Lords deciding to accept Professor Newark's thesis is not a reason for this court not to apply the law as it now stands.
33. Even if precedent did not prevent this court from deciding the question of whether damages for personal injuries can be recovered in public nuisance, I would not, on the strength of Professor Newark's article and dicta in the two House of Lords decisions, have refused the application for permission to amend the particulars of claim to add a claim in public nuisance. I would have held that this important question of law should be decided following full argument after a trial when all relevant facts had been found.
34. The trial has been fixed to take place in February 2009 with an estimated length of 38 days. Its duration will not be substantially increased by the inclusion of the claim in public nuisance. It cannot be said that this claim has no real prospects of success.
35. I would dismiss this appeal.

Lady Justice Smith

36. I agree.

Lord Justice Ward

37. I also agree.