I. Introduction
The tort of public nuisance has been described as a “strange”Footnote 1 “amorphous and unsatisfactory area of the law”Footnote 2 that suffers from a “schizophrenic nature”,Footnote 3 which makes the task of defining it “nigh-on impossible”.Footnote 4 In fact, it has almost become trite to disparage its lack of coherence.Footnote 5 What accounts for this “vilification”?Footnote 6 I would suggest that there are three causes. First, the tort of public nuisance, under the current orthodox conceptualisation, is inextricably linked to the crime of the same name and with the jurisprudence relating to the Attorney General's powers, as the guardian of the public, to enjoin criminal behaviour. Second, as if that were not complicated enough, the ambit of the tort simultaneously overlaps, on many fact patterns, with either the law of private nuisance or negligence or both. Therefore, one has to deal with a mass of principles from varying subjects (from criminal to administrative to tort law) to begin to understand what is going on in even the simplest of cases. Third, and perhaps most importantly, as a result of these overlaps, the true legal and conceptual basis of the tort has become hidden from view. In light of this difficulty, the purpose of this article will be to uncover this legal basis and to reconceptualise the tort around it. In other words, it will seek to answer the question of “Why would a sophisticated legal system, such as that of England, have a tort of that name?” The methodology employed to answer that question will be conceptual and interpretative rather than purely descriptive or historical.Footnote 7
In order to perform this task, the article is divided into four further parts. Section II examines the current orthodox conceptualisation of the tort and explains why this understanding has led leading tort theorists to argue that, at least in an ideal world, the courts would relegate public nuisance to the dustbin of history. Section III lays out an alternative conceptualisation for public nuisance by outlining the rights protected by the tort and explaining how such rights can be, as the cases indicate, both public in some meaningful sense and actionable by private individuals. Section IV provides answers to current controversies surrounding the tort relating to: (1) its overlap with private nuisance, (2) the nature and meaning of the concept of special damage and (3) the recoverability of pure economic loss and damages for personal injuries. And Section V offers a brief conclusion.
II. The Orthodox Conceptualisation of Public Nuisance
Under the orthodox Anglo-American understanding of public nuisance, the tort and the crime of public or common nuisance are virtually indistinguishable.Footnote 8 Thus, most textbooks start their discussion of public nuisance with assertions that what makes this tort different, and distinguishes it from private nuisance, is that it is also a crime.Footnote 9 As William Prosser argued in his formative article: “A public or common nuisance is always a crime. It may also be a tort, provided that the plaintiff can plead and prove that he has suffered some ‘special’ or ‘particular’ damage.”Footnote 10 At first blush, this seems a rather strange position to take, since, as Thomas Merrill notes, “the commission of a crime, such as an assault, will often give rise to liability in tort”.Footnote 11 But the difference is this: while many well-established torts have both a criminal and tortious nature and can therefore be said to run in “parallel”,Footnote 12 the liability envisioned for the tort of public nuisance is seen to be “parasitic” on the existence of the crime. Phrased differently, the commission of the crime is seen as “both a necessary and a sufficient condition for civil liability for public nuisance” whereas, for all other torts, “the commission of a crime is neither a necessary nor a sufficient condition for tort liability”.Footnote 13 As John Murphy explains in his nuisance treatise: “In order for there to be an actionable tort of public nuisance … two things must be shown: first, that a public nuisance simpliciter has been committed; and secondly, that the claimant has suffered particular damage in consequence”.Footnote 14 That this is not solely an academic view was made clear by Lord Bingham in the leading criminal case of R. v Rimmington:
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… . It was, however, held by Fitzherbert J., as early as 1536 … 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.Footnote 15
The definition employed by the courts for both the tort and crime has been taken fromFootnote 16 Archbold: Criminal Pleading, Evidence and Practice and is as follows:
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 or comfort of the public, or to obstruct the public in the exercise or enjoyment of rights common to all Her Majesty's subjects.Footnote 17
As commentators have begun to realise, however, if this is the best understanding of public nuisance, then there really should be no tort of that name. As Nick McBride and Roderick Bagshaw explain, the “duty that someone breaches when they commit a public nuisance is a duty imposed for the benefit of the public as a whole, not for the benefit of any particular individual. And tort law normally deals … with breaches of duties owed to particular individuals”.Footnote 18 Likewise, Merrill argues that the fact that public nuisance protects public rights, is parasitic on the crime and is “predominantly enforced by public officials” means “that public nuisance, as conventionally conceived, is not a tort”.Footnote 19 A similar view has also been expressed by Murphy, who states: “Because the rights that are violated in cases of public nuisance are public rights, it can be argued that civil actions in respect of public nuisance are not properly to be regarded as tort actions.”Footnote 20
Beyond the problem that the tort should not exist, there are four other related difficulties with the current orthodox conceptualisation of public nuisance. The first difficulty is that the tort, as currently conceptualised, violates the general principle, authoritatively affirmed in cases such as Lonrho Ltd. v Shell Petroleum Co. Ltd. (No. 2) Footnote 21 and OBG Ltd. v Allan,Footnote 22 that there is no liability in tort for merely causing loss through the commission of a criminal offence or other unlawful action.Footnote 23 As John Spencer notes: “The courts may be wrong in refusing to accept the idea that damages should be generally recoverable for losses caused by breaches of the criminal law, but as long as they do so, giving the plaintiff damages for any type of loss merely because the defendant has caused it by committing the crime of public nuisance is anomalous.”Footnote 24 Thus, the existence of the tort of public nuisance under this formulation renders the common law internally incoherent, since it anomalously allows tortious recovery for one crime but not for others.
Second, allowing recovery for private individuals violates the private law principle that an injury to another's rights, even if it causes loss to you, does not give you a cause of action. As Robert Stevens explains: “The only person who can enforce a right is the right-holder, and persons who suffer loss because of the infringement of someone else's right do not have standing to sue. Privity is a principle most commonly considered within the law of contract, but it is applicable to all rights.”Footnote 25 Since, as noted above, the gravamen of the crime is conceived to be interference with public rights, only the holder of that right, namely the public (considered as an indivisible unity and represented by the Attorney General), should be able to sue. As McBride and Bagshaw point out, if judges were taking privity seriously, they should have said “that public nuisances were not civilly actionable because committing a public nuisance involved a wrong to the public, and not [to] any particular private individual” rather than relying on concerns of multiplicity of actions.Footnote 26 It was a “classic example of the dangers of reaching the right conclusion but for the wrong reasons”.Footnote 27
Third, there is the problem that the parasitic tort created by the crime is one that is extraordinarily wide and “very vague”,Footnote 28 basically protecting a right not to have one's life unreasonably interfered with.Footnote 29 If taken seriously, it would have the potential to swallow much of the law of torts and undercut the well-defined causes of action that currently protect our rights to bodily integrity, property and reputation.Footnote 30 As Spencer rhetorically asked: “With such a broad concept in existence, backed with such broad remedies, what need have we of any other … torts …?”Footnote 31 Similarly, an American court noted that, if left unchecked, the tort of public nuisance “would become a monster that would devour in one gulp the entire law of tort”.Footnote 32
Fourth, and finally, there is the practical problem that, under the orthodox view, the scope of the tort automatically changes with each amendment or variation in the criminal law. As Jamie Cassels points out, “If proof of criminal conduct by the defendant is a precondition to civil liability for public nuisance, the scope of the modern law must be defined and limited by existing criminal” law.Footnote 33 Thus, if the crime were abolished, it necessarily mean that the current tort would go with it. As Murphy notes: “Perhaps ironically, one of the strongest arguments that can be made in favour of retaining the common law crime of public nuisance is the fact that, without it, there would be no prospect of an individual obtaining a civil law remedy in respect of such interferences.”Footnote 34
In light of these conceptual difficulties and violations of basic principle, the tort of public nuisance looks like a parasitic anomaly that ended up in the tort law books as a result of two historical accidents.Footnote 35 The first was the association of public nuisance with private nuisance by medieval writers on the basis that they shared “half a name” and some similarities in terms of the problems with which they dealt.Footnote 36 The second was that later judges were led into error by the “incautious obiter dictum”Footnote 37 of Fitzherbert J.Footnote 38 – one that posited a private right of action for a claimant who suffered special damage – that was either wrong when renderedFootnote 39 or misunderstood by later generations.Footnote 40 Thus, if the orthodox conceptualisation of public nuisance were correct, one would expect that, in the process of working itself pure, the common law would excise the anomalous “tort” much as it excised the ability of disappointed building purchasers to sue for pure economic loss in negligenceFootnote 41 or for non-possessors to sue in the tort of private nuisance.Footnote 42 As Spencer argued, if “we abolished civil liability for damages for public nuisance the law of tort would be no less fair, and cleaner and simpler as a result”.Footnote 43
The argument of this article, however, is that such a drastic remedy is not necessary. The orthodox understanding of public nuisance is incorrect in positing that the tort is dependent on the existence of the crime and that liability is therefore imposed to remedy a loss caused by the commission of a criminal offence. The next section proposes an alternative view – one that is implicit in the cases of highest authority but which has been hidden by the orthodox crime-as-tort conceptualisation.
III. An Alternative Conceptualisation
In 1985, Cassels asserted that, if the criminality requirement was not to serve as the lynchpin of public nuisance, then it was crucial for courts and theorists to offer a “general theory of public rights” that could undergird the tort rather than some vague “catalogue of social interests such as health, safety, comfort and morality”.Footnote 44 In other words, public nuisance was “a remedy in search of a right”.Footnote 45
This section offers such a rights-based account. Where to begin? As with any interpretative theory, the most natural place is with the leading cases and the academic explanations of those cases. Although the standard accounts are written with the orthodox conceptualisation of the tort as their starting point, when they turn their attention to identifying the most relevant and prevalent examples of public nuisance, they almost invariably come to the conclusion that obstructing highways (i.e. dedicated roads or navigable waterwaysFootnote 46 ) is the core case.Footnote 47 Moreover, when one then examines the cases of high authority, it becomes clear which right the courts are protecting in such cases: the public's right to pass and repass (or to navigate) on highways.Footnote 48 Interestingly, the courts often described this right as one in the nature of, or akin to, an easement.Footnote 49 It is said “to be akin”, since, unlike an easement proper, this easement does not require a dominant tenement, but rather is enjoyed by all subjects.Footnote 50 As Lord Hope noted in DPP v Jones: “A public right of way is similar to … an easement of way” and is “exercisable by anyone whether he owns land or not”.Footnote 51 Thus, the leading cases see the core case of public nuisance as protecting rights akin to easements that people enjoy as a member of the public to pass and repass over the highway.
While, at first blush, this seems to solve the problem of relying on the crime of public nuisance to ground the action, it still does not meet the criticisms of McBride and Bagshaw, Merrill or Murphy and demonstrate that public nuisance is a tort. This is because the courts speak of a public right to pass and repass and, as we have seen, torts should not protect interferences with public rights. Once again, the argument goes, a theory dependent on public rights (in whatever form) really demonstrates that the action does not belong in the tort law textbooks and should most properly be pursued by the Attorney General as representative of the public.
To show that public nuisance is a tort, then, the challenge is to demonstrate that the right to pass and repass on the highway can be, as the cases indicate, both public in some sense and yet private, and therefore actionable by private individuals. An additional challenge, if one were thought necessary, would be to demonstrate why such a right exists and how it interrelates with other public rights and the more basic rights to bodily integrity, property and contractual performance (i.e. is the recognition of such a right consistent with these other rights or is it some kind of mistake or ad hoc conjuring trick performed by the common law to reach a desirable result?). Given the breadth and depth of such an undertaking and the limited nature of the judicial role,Footnote 52 it is unlikely that such a discussion or demonstration would be found in a judicial decision. What then is a lawyer trying to interpret the cases and to answer difficult questions of scope to do? It is submitted that he or she might go further afield to the writings of academics and legal philosophers (such as those in the Kantian and Hegelian tradition) who employ congruent methodologies and who articulate “their accounts under the most rigorous constraints of coherence” demanded by those employing interpretative legal theory.Footnote 53
In fact, in his recent monograph on Kant's legal philosophy,Footnote 54 Arthur Ripstein has much to say about the conceptual necessity of public highways. The argument is detailed, dense and developed over numerous chapters but may fairly be summarised as follows. All people are born with the innate right to be their own master, to decide for themselves what purposes they will pursue. As Ripstein argues: “The idea of being your own master is … equivalent to an idea of equality, since none has, simply by birth, either the right to command others or a duty to obey them.”Footnote 55 This right to be one's master, however, is subject to two limits. Because we do not live in the world alone, the first limit is the right of every other human being to also be his or her own master. Thus, as Kant describes it: “Freedom (independence from being constrained by another's choice) insofar as it can coexist with the freedom of every other in accordance with a universal law, is the only original right belonging to every human being by virtue of his humanity”.Footnote 56 The second limit is that, because this right is innate or original, it may not be alienated.Footnote 57 This limitation on the right to be your own master is often described as the duty of rightful honour.Footnote 58 As Ripstein explains:
rightful honor prevents you from giving up your capacity to set your own purposes, and so prevents others from asserting claims of right that assume that you did. In private right your rightful honor prevents you from entering into an enforceable contract of slavery, even if you were to believe the arrangement to be to your advantage. In public right, it prevents officials from making arrangements on your behalf that are inconsistent with your innate right.Footnote 59
After explaining why equal freedom justifies the existence of the well-accepted rights to personal integrity, reputation, property and contractual performance,Footnote 60 and why the very idea of rights demands the existence of a public authority entitled to make, apply and enforce laws,Footnote 61 Ripstein turns to discuss what limitations the concept of independence might make on the nature of the state.
As he argues, the duty of rightful honour (which it will be recalled is merely a manifestation of one's innate right to be his or her own master) dictates that a person could not enter into a law-governed society without certain guarantees or backstops. For our purposes, the most pertinent of these guarantees is that a person could not enter into a civil condition that did not provide a system of public highways.Footnote 62 As he explains, the problem is that “the uniqueness of land … has the surprising implication that as a matter of private right, your neighbors are entitled to trap you on your land, or, once you are off it, keep you off.”Footnote 63 As Ripstein points out, a society without public roads would therefore make every person “systematically subject to the choice of others” which would violate the duty of rightful honour.Footnote 64 As he argues: “the right to be your own master is contrastive; no other person is your master. A neighbor who is entitled to decide who you can associate with would be your master”.Footnote 65 Moreover, the problem is not merely that some of your wishes or purposes would be frustrated, but rather that “the entire formal class of purposes involving interactions with others” would be affected.Footnote 66 As he adds: “The problem is formal, because it does not depend on the particular purposes for which two persons might wish to interact, but rather on the fact that they are subject to a third (or fourth or fifth) person for whom they must secure permission to interact”.Footnote 67 Moreover, this formal problem is not solved by the fact that you could get (and likely might get through market mechanisms) permission from others to cross their land in return for a mutual promise or payment by you – the “problem is that your neighbor is entitled to do this” and therefore “to decide whether you enter into voluntary arrangements with others”.Footnote 68 The solution to this problem, as Ripstein argues, is “obvious”:
roads, understood as a system of public rights of way, guaranteeing that there is a path from every piece of privately held land to every other. With a system of roads in place, everyone can enter into voluntary transactions with whomever they wish, without being subject to the choice of any other person. The rights of way need to be public, rather than endlessly many private easements, precisely because access must be guaranteed to everyone in order to reconcile property in land – ownership of a location – with freedom. The system as a whole must make it possible to get from any piece of land to any other. A public right of way can cross private property, but it must be public in the sense of being open to all as a matter of right, rather than available only to some specific person or group of persons.Footnote 69
Later in his discussion of this issue, Ripstein makes it clear that every society must decide for itself how best to provide for and protect the public system of highways. As he argues: “The state is required to provide public rights of way; its obligation to do so authorises it to decide how to do so. The obligation is not self-applying.”Footnote 70 Thus, a state could decide to maintain and protect highways only through public law (i.e. through taxation, criminal liability and public regulation of traffic) but it also is consistent with these principles that it might also choose to protect the use of the highways through the granting of civilly actionable rights to pass and repass over the highway with a concomitant universal duty on citizens to respect that right. This is, I think, the best interpretation of what the common law has done. As Ripstein states:
The person who puts a pole across the road commits a public nuisance and is subject to a public law penalty …. In limited circumstances, private parties who are affected by the public nuisance have standing to sue, but the public nuisance is not an aggregate of private nuisances. Instead, it is an interference with the rights of members of the public, that is, private citizens coming and going as they please, making use of the road, a right that they enjoy as members of the public.Footnote 71
Are there other public rights that might be protected by the tort of public nuisance that could form a coherent set with the right to pass and repass? To qualify any additional right would have to be: (1) recognised by the common law, (2) share the same analytical structure – that is, be a right to make use of the land of another granted by the proprietor of that land to members of the public and (3) be consistent with equal freedom and rightful honour. A search of the law reveals that there is one “cognate” rightFootnote 72 in the nature of a profits à prendreFootnote 73 that is clearly established by cases of the highest authority.Footnote 74 This is the public right to fish in tidal waters that has been described as “an enduring and ancient feature of the common law”Footnote 75 and, as such, is usually included in any list of core public rights.Footnote 76 As was stated in Neill v Duke of Devonshire:
But though the King is owner of this great waste, and as a consequence of his propriety hath the primary right of fishing in the sea … yet the common people of England have regularly the liberty of fishing in the sea … as a public common of piscary, and may not without injury to their right be restrained of it.Footnote 77
Similarly, in A-G for British Columbia v A-G for Canada, the Privy Council held that:
[T]he subjects of the Crown are entitled as of right not only to navigate but to fish in the high seas and tidal waters alike. … The right into which this practice has crystallized resembles in some respects the right to navigate the sea or the right to use a navigable river as a highway, and its origin is not more obscure than that of these rights of navigation. Finding its subjects exercising this right as from immemorial antiquity, the Crown as parens patriæ, no doubt regarded itself bound to protect the subject in exercising it.Footnote 78
Later in its advice, the Privy Council also noted that, because of Malcolmson v O'Dea,Footnote 79 “it has been unquestioned law that since Magna Charta no new exclusive fishery could be created by Royal grant in tidal waters, and that no public right of fishing in such waters, then existing, can be taken away without competent legislation”.Footnote 80 Moreover, like the right to pass and repass, this right to fish in public waters has been seen as capable of grounding an action in the tort of public nuisance.Footnote 81
Having passed the first two hurdles, the next question is whether the right is consistent with equal freedom. In his monograph, Ripstein argues that, in addition to a system of public roads, the duty of rightful honour also dictates that one could only enter into a rightful condition that included state-backed provision for the poor. This is necessary, since: “An arrangement in which one person's entitlement to use anything is entirely left to the discretion of others is inconsistent with rightful honor, so it could not give rise to enforceable rights. Therefore, the only way that property rights can be made enforceable is if the system that makes them so contains a provision for protecting against private dependence.”Footnote 82 As he notes, “the problem is specific to property, because if property rights are not enforceable, each person is at liberty to help himself to whatever he wants, and so to what he needs. … By contrast, once property rights are enforceable, the ability to use external objects that are not your own is subject to the choice of others”.Footnote 83 Much like the provision of roads, however, the solution to this dependence must be systematic and public and will not be self-applying.Footnote 84 As he notes, the argument is “formal and procedural rather than substantive”Footnote 85 and hence the “level and manner of provision” will reflect the “economic and political features of a particular society”.Footnote 86 Thus, a state could decide to make provision for the poor solely through its public law (i.e. through taxation and social programmes) but it is also consistent with these principles that it might additionally choose to provide for the poor through the provision of profits à prendre over public property. Once this latter route was taken, there would of course be secondary questions related to the content of that right that would have to be authoritatively determined. For example, what are subjects allowed to take and from where? And is the right universal and open to all or is it limited by some sort of means test?Footnote 87 Given the fact that, during the formative period of this right, England (1) was, by modern standards, an “unpoliced and unregulated society, in which local government was rudimentary or non-existent”,Footnote 88 (2) was committed, through its poor laws, to encouraging the able-bodied poor to support themselves rather than simply receiving reliefFootnote 89 and (3) was surrounded by waters teaming with sea life in which its subjects had fished since time immemorial,Footnote 90 it was an easy conceptual move for the courts to determine that the Crown had granted its subjects a universal right to fish in public waters in order to help ameliorate the conditions of dependency which property might create. As the court stated in Anderson v Alnwick: “Many of the authorities show that the underlying reasons for the public rights to navigate and to fish were economic. Sea fishing from boats or from the land was a vital source of food for many coastal communities.”Footnote 91 Similarly, in Brinckman v Matley, Buckley J. noted that “the right of fishing tends to the sustenance and beneficial enjoyment of individuals”.Footnote 92 Likewise, in Blundell v Catterall, Bayley J. held that the fact that the public right to fish included the right to take exposed shellfish from the foreshore (as decided in Bagott v Orr Footnote 93 ) was consistent with the non-recognition of a public right to use the foreshore for bathing. As His Lordship explained, the claim in Bagott v Orr “was very different from the present; it was a claim for something serving to the sustenance of man, not a matter of recreation only”.Footnote 94 It should be emphasised that the claim is not that a privately actionable right to fish axiomatically flows from the concept of equal freedom such that its existence is demanded or “goes without saying” for every legal system. Nor is it that this right to fish is the only public profits à prendre that would be consistent with equal freedom – for example, in the abstract, there is nothing objectionable to a right to pick “berries, mushrooms, or flowers” from public rights of way (as is recognised in some Scandinavian countriesFootnote 95 ), to take wild fowl from public propertyFootnote 96 or to glean the harvest of a public field.Footnote 97 Rather, the claim is that the right actually recognised by English courts is consistent with equal freedom in so far as its grant from the Crown aimed to provide a mechanism to ameliorate poverty and that this consistency remains despite the fact that this approach (even in combination with modern social programmes) has not yet been successful in eliminating all dependency.
Having examined the privately actionable passage and fishing rights enjoyed by members of the public, are there any other rights that “inhabitants and citizens of the United Kingdom” enjoy “by virtue of its common law” that the tort of public nuisance could be said to protect?Footnote 98 Although, to modern ears, talk of “public rights” seems to open the possibility of broad and far-reaching claims,Footnote 99 in traditional common law, the concept of a public right is one that is restrained and limited.Footnote 100 So far, the courts have not recognised any other privately actionable public rights beyond passage and fishing (or those ancillary theretoFootnote 101 ) and attempts to have the number of these rights expanded have, so far, been decisively rebuffed.Footnote 102 As Fletcher Moulton L.J. forcefully held in Denaby and Cadeby: “there is no authority whatever for the proposition that the lands under the sea are subject to any other public rights than those of navigation and fishing.”Footnote 103 Thus, although we might envisage other rights that would be consistent with equal freedom and that could take the form of an easement or profit, there are no rights that are currently recognised by the law. As a result, public nuisance claims are limited to interferences with these existing rights (unless and until such times as the court recognises new individually actionable rights that arise merely by being a subject of the Crown). Although this conclusion will seem controversial to those weaned on the current conceptualisation of the tort, to others, in early times, it seemed axiomatic. As was stated in the first edition of Clerk & Lindsell: “The only rights common to all Her Majesty's subjects are rights of free passage along a public highway by land or water, and rights of fishing in navigable tidal water. A public nuisance, therefore, consists in some interference with the comfortable use by the public of a highway or with the public right of fishing.”Footnote 104
The purpose of this discursion into Kant's legal philosophy was to answer some basic questions about the nature of the tort of public nuisance. First, what rights are protected by the tort? As we have just seen, the rights protected are to pass and repass on the public highways and to fish in public waters (as was posited by cases of highest authority). As this is its rights-base, the tort of public nuisance is thoroughly independent of the crime – this means that, if the crime were abolished, this would not abolish the tort of public nuisance, just as the abolition of any other crime (such as theft, assault or defamatory libel) would not abolish its corresponding tort.
Second, can these rights be both private and public (at least in some senses) simultaneously? The answer is “Yes”. The rights are private in two senses. They are private in the sense that every subject can enforce these rights in their individual capacity and be given damages for their infringement (limited by the concept of special damage discussed below). They are also private in the sense that these obligations of non-interference with passage and fishing rights are owed by individual subjects to other individual subjects. In this way, the liability envisaged is no different than the ability to sue for interferences with rights to private property or to personal integrity. Concomitantly, these rights are not solely obligations that the state owes its citizens, which are enforced by individual citizens (as private attorney generals) for reasons of convenience. The rights are simultaneously public in two senses. To begin with, they are public in the sense that every person enjoys these rights simply because they are subjects of the Crown (i.e. members of the public). They are also public in the sense that they would not exist but for the entering into a civil condition. As Ripstein notes, “the entitlement to use public spaces is not a natural right that can be either exercised or even conceived in the absence of a rightful public authority, for there could be no such spaces without such an authority”.Footnote 105
Third, how do the rights of passage and fishing interact with rights to bodily integrity, property and contractual performance? The answer to this question is that these public rights cohere with the more basic rights because they are consistent with equal freedom and are part of a civil condition in which rights to bodily integrity, property and contractual performance can be fully realised and protected.
Fourth, is public nuisance a tort? The answer to this question is “Yes”, since the best interpretation of English law is that it conceives of public nuisance as centred on privately actionable rights of passage and fishing. If this analysis is correct, then it is not an accident, and there has been no conjuring trick, when the law allows claims in the tort of public nuisance. Instead, what has occurred is an intervention justified by the rights of English subjects to pass and repass on the public highways or to fish in public waters. Unfortunately, this understanding of the legal and conceptual basis of public nuisance has been obscured by the current orthodox understanding that has confusingly intertwined the common law crime of public nuisance with its tortious counterpart. Hence, the next section further disentangles these concepts by applying the proper legal and conceptual basis to controversial areas of the tort of public nuisance.
IV. Current Controversies
Having outlined the basis of the tort of public nuisance as protecting a person's passage and fishing rights, this section examines how some current controversies in the law should be answered in light of this understanding. The questions to be examined are: (1) How many contemporaneous private nuisances make a public nuisance? (2) What is the best understanding of the concept of special damage? (3) Is pure economic loss properly recoverable? And (4) should damages for personal injuries be recoverable in public nuisance?
A. Contemporaneous Private Nuisances
It is standard textbook practice to devote part of the discussion of the tort of public nuisance to the question of how many people have to suffer a private nuisance (or other private wrong) in order for the offending activity to be deemed a public nuisance.Footnote 106 A comparison is often made between A-G v P.Y.A. Quarries Ltd. Footnote 107 (where 30 householders were affected by the defendant's quarrying operation and the activity was found to be a public nuisance) and R. v Lloyd (where only three people were affected by the noise of a Tinman and the activity was not found to be a public nuisance).Footnote 108 Since their Lordships’ decision in Rimmington,Footnote 109 there is also usually a discussion of the requirement of a common or shared injury,Footnote 110 which, in cases such as these, would mean that the private nuisances must be the result of some activity by the defendant that has a contemporaneous effect on claimants. As Donal Nolan states: “A public nuisance must affect members of the public as a whole, rather than merely a number of different individuals, and it follows that sending offensive mail – or making offensive phone calls – to a large number of people does not qualify.”Footnote 111 If the argument above is correct (namely that the tort of public nuisance only protects passage and fishing rights), then these discussions are misguided – no number of private nuisances (even if they are contemporaneous and shared) can ever amount to the tort of public nuisance. This confusion is caused by the orthodox understanding of the tort that equates it thoroughly with the crime. Thus, while it is true that a series of contemporaneous private wrongs that “endanger the life, health, property … or comfort of the public” can constitute the crime of public nuisance,Footnote 112 they cannot constitute the tort without also interfering with the right to pass and repass on the public highways or the right to fish in public waters. Consequently, there is no conceptual overlap between the two torts and no amassing of one can produce the other.Footnote 113 Once again, this conclusion will seem controversial to those familiar with the orthodox crime-in-tort conceptualisation but, to others, in early times, it seemed axiomatic. As was argued in the first edition of Clerk & Lindsell:
The mere fact that a nuisance causes annoyance to a large number of occupiers of premises in the neighbourhood is not sufficient to make it a public nuisance. No doubt a nuisance of smoke, or noxious vapours, or offensive stenches can hardly be productive of annoyance to many persons in the neighbourhood without also causing annoyance to members of the public using one or more of the highways intersecting the district, but the nuisance in such case will be a public one only if, and to the extent which, it affects the comfort of the latter class.Footnote 114
B. Special Damage
It is trite law “that an individual who is adversely affected by a public nuisance may not sue in tort unless he can show that he has suffered [special damage] over and above that suffered by the general public”.Footnote 115 What constitutes special damage, however, has been clouded with uncertainty “for more than four centuries”Footnote 116 and is “far from a clear-cut concept”.Footnote 117 As others have noted, “few points in civil law are more obscure than the meaning of ‘special damage’”Footnote 118 except perhaps the “meaning [of] public nuisance itself”.Footnote 119 Beyond being seen to be unclear and obscure, the special damage requirement is also perceived by many to be a blunt and largely “arbitrary” control device that stops misfeasors from bearing the proper costs of their wrongful actions.Footnote 120 Whether or not such a control device is necessary or welcome is hotly debated.Footnote 121 According to the most traditional formulation of the test, the damage will qualify as special if it is particular, substantial and direct.Footnote 122 Examined in light of the reconceptualised rights-base for public nuisance, these criteria can be rehabilitated from claims that they are arbitrary or irrational.
1. Particular
There has been much debate over the years as to what constitutes particular damage in the special damage inquiry.Footnote 123 While some take the position that the claimant must prove that their injury was different in kind from that suffered by the public,Footnote 124 the more widely accepted view is that English law requires only a difference in extent.Footnote 125 If the tort of public nuisance is reconceptualised as indicated above, however, this debate misses the point and is unnecessary. All that “particular” need mean is that the tort of public nuisance, like the torts of private nuisance and negligence, is not actionable per se and that claimants will not be given nominal damages for technical or “theoretical”Footnote 126 violations of their passage or fishing rights. Instead, claimants must prove that they were actually interfered with and that this caused them pecuniary loss (or gave rise to a situation from which pecuniary loss could be inferred).Footnote 127 While this view of particularity may seem shocking at first to those immersed in the modern orthodox conception of public nuisance, it is justifiable in both principle and precedent.
From the perspective of principle, this rule makes sense, since the tort of public nuisance, like the torts of private nuisance and negligence, typically regulates situations where defendants use what is theirs and this use has collateral effects on the claimant's rights. In such a situation, the defendant's action is only wrongful when it causes some sort of damage or loss to the claimant, since the law only “restricts the ways in which each person can use his or hers means to those ways that are” inconsistent “with everyone else being able to do the same”.Footnote 128 As Ripstein explains, provided the claimant's “means survive intact, there is no inconsistency between the defendant's act and the [claimant's] right to his or her means”.Footnote 129 Moreover, given that the wrongfulness in these torts is the damage that they cause to the subject matter of rights, the most straightforward way to “to address the wrong is to address the factual loss”.Footnote 130 This is to be contrasted, of course, with situations where the defendant uses, even unknowingly, that which belongs to another (such as in the trespassory torts). In such a situation, the use itself is wrongful, since the defendant has acted “with the intention of exercising a liberty which” he or she “did not have with respect to the claimant”.Footnote 131 Hence liability is strict and the interference is actionable without proof of damage or loss in order to preclude the defendant from using what belongs “to another without that other's authorization”.Footnote 132
From a doctrinal perspective, this pecuniary loss view of particularity has always been the best interpretation of the foundational English cases on the subject.Footnote 133 For example, in 1875, Horace Wood thought that the requirement of particularity “amounted to no more than the difference between ‘injury in fact’ … and ‘injury in contemplation’”.Footnote 134 As he stated, “It will be noticed that a distinction is made in all these cases between actual present damages and those that rest in contemplation”.Footnote 135 Similarly, in 1915, Jeremiah Smith, one of “the leading torts theorists of the late nineteenth century”,Footnote 136 extensively examined these same cases and determined that they stood for the proposition that a claimant could bring an action in public nuisance “consequent upon his exercise of a public right being interfered with, and distinct from the [mere] fact that it is interfered with” provided that the claimant could prove that he or she suffered actual pecuniary loss.Footnote 137 Therefore, he concluded that public nuisance was similar to private nuisance or negligence in that “actual loss, proved as a matter of fact, is the gist of the private action”.Footnote 138 Despite the prevalence of the orthodox conception, many commentators have come to embrace this interpretation of particularity.Footnote 139 As the Fleming treatise argues: “There is a clear modern tendency to reject the elusive distinction between difference in kind and in degree, and to allow recovery if the obstruction causes more than mere infringement of a theoretical right which the plaintiff shares with everyone else.”Footnote 140 Moreover, the House of Lords supported this position in Tate & Lyle Food & Distribution Ltd. v Greater London Council, when their Lordships held that an “individual who suffers damage resulting from a public nuisance is, as a general rule, entitled to maintain an action” – a position perfectly consistent with the reconceptualisation of the tort herein presented.Footnote 141
2. Substantial
An obstruction must substantially interfere with a subject's passage and fishing rights in order to be actionable.Footnote 142 This makes sense, for two reasons. First, it is consistent with the law relating to private easements and profits that also require substantial interference to be actionable.Footnote 143 Second, it recognises that the rights to navigate and to fish are shared amongst all of the public and therefore the legal system's rule must accommodate the shared use of all its subjects. As was held in Lord Leconfield v Lord Lonsdale: “In the sea and tidal parts of the rivers the public have the right of catching all the fish they can by all means which are not inconsistent with the equal rights of each other.”Footnote 144 Similarly, in Harper v GN Haden & Sons, Romer L.J. indicated that:
The law relating to the user of highways is in truth the law of give and take. Those who use them must in doing so have reasonable regard to the convenience and comfort of others, and must not themselves expect a degree of convenience and comfort only obtainable by disregarding that of other people. They must expect to be obstructed occasionally. It is the price they pay for the privilege of obstructing others.Footnote 145
The only exception to this is that those who own land abutting the highway are entitled to enclose a reasonable portion of the highway for a reasonable amount of time to do work upon their premises even if this would otherwise constitute a substantial interference. Although this has confused some,Footnote 146 it is simply the common law's way of reconciling the undoubted right that an adjacent owner has to access to his or her property across the whole of its frontageFootnote 147 with the right that everyone else has to pass and repass on the highway.Footnote 148 As Evershed M.R. stated in Trevett v Lee:
there are two kinds of rights: there is the right of the ordinary person … to use the highway for passage from one point to another; and there is the right of the householder to use the highway for access to his house … . And the question whether a householder is or is not obstructing the highway so as to give rise to a cause of action is to be judged by balancing, on standards of reasonableness, the claims and conduct of the householder on the one side and the members of the public on the other.Footnote 149
3. Direct
Much like other aspects of public nuisance and of the special damage inquiry, what constitutes direct damage “remains shrouded in mystery”.Footnote 150 In fact, some have claimed that it is the “most obscure point” in the whole inquiry.Footnote 151 It certainly has confused many judges and jurists, forcing some of them to merely repeat their discussions of what counts as “particular” as its definitionFootnote 152 and others to metaphorically hold their hands up in frustration.Footnote 153 One key battleground in relation to this issue has been whether or not “loss of custom” is a recoverable head of damage in public nuisance. As the 21st edition of Clerk & Lindsell reports, “there has been a difference of judicial opinion whether there is a right of action”.Footnote 154 On the one hand, there is a line of cases starting with Wilkes v Hungerford Market Co. Footnote 155 and culminating with Colour Quest Ltd. v Total Downstream UK plc,Footnote 156 which hold that this loss of custom is recoverable. This is to be contrasted with another line of cases starting with Ricket v Directors of the Metropolitan Railway Company, which hold that such a loss is “too remote”Footnote 157 and that therefore Wilkes was wrongly decided.Footnote 158 Although, as a matter of stare decisis, it appears that Ricket should be controlling,Footnote 159 which line of authority is preferable given the conceptualisation of the tort herein presented?
Although, to modern ears, the mention of remoteness would seem to be an allusion to factual concepts (such as physical and temporal closeness) or concerns of policy (such as the prevention of indeterminate liability), the point made in Ricket was that proprietors cannot sue for loss of custom because the damage they suffer will not be the consequence of their right to use the public highway being violated by the actions of the defendant; instead, the damages would be the consequence of their customers’ right to use the public highway being interfered with. On this set of facts, the customers would be able to sue, but the proprietor would not.Footnote 160 As Murphy argues: “Quite why the claimant should be able to hitch his claim to the infringement of others’ rights is unclear; although if he had been prevented from plying his trade because he himself had been obstructed … the objection to his action succeeding” would disappear.Footnote 161 Thus, directness in the special damage inquiry means that the claimant cannot sue if someone else's right to navigate or fish was infringed. Thus, if the concept is correctly understood, there is nothing “obscure”Footnote 162 or “specious”Footnote 163 about what is meant by directness in these cases – it is merely an application of the privity principle discussed in Section II.Footnote 164
Although not usually explained in these terms, it is submitted that directness also deals with the limitation raised in Jacobs v London City Council that the injury or loss suffered must actually flow from the claimant's use of the highway as a highway in order to be recoverable.Footnote 165 Thus, if the contention is that an obstruction of the highway causes the claimant to lose a view of a public processionFootnote 166 or blocks light necessary for its business,Footnote 167 the claim should fail, since these infringements are beyond the scope of the right – it is merely a passage right, not an easement protecting a right to a view or a right to receive light.Footnote 168 Phrased differently, in those two situations, it could not be said that being prevented from passing and repassing has in fact caused you the loss of the view or the light. So, in a law of public nuisance properly reconceptualised, “direct and not consequential” means that a claimant can only sue for damages that (1) flow from the violation of his or her rights (as opposed to the rights of some third party) and (2) are within the scope of the right's protection.
4. Policy implications
Does adopting these views on substantiality, directness and particularity eviscerate the rationales or policies behind the special damage rule?Footnote 169 In a very helpful survey, Denise Antolini outlines the three well-accepted rationales that she describes as sovereignty, triviality and multiplicity.Footnote 170 The rationale of sovereignty represents the view that, since the rights involved are public, it is primarily the duty of the public's representative to enforce these rights and to control the ensuing litigation so that it is, all things considered, conducted in the public interest.Footnote 171 On the view of public nuisance presented above, however, the concept of sovereignty does not apply. The rights involved are privately actionable public rights in the nature of easements and profits, so the state has no say in how they should be enforced or whether that enforcement would be in the public interest, just as the state would have no say in how private easements or profits were enforced (beyond, of course, the generalised rules of civil procedure applying to all actions). Moreover, if it were true that individuals enforcing these rights would jeopardise an overwhelming public interest (such as the construction of an important highway, bridge or marina), that public interest might be protected by deeming the interference to be lawful via statute – the defence of statutory authority being as much a defence to a public nuisance as it is to a private one.Footnote 172
The rationale of triviality is that, without a rigorous special injury rule, courts would be inundated with “busybodies” who would clog the court system with unmeritorious or frivolous claims.Footnote 173 Under the theory proposed, there are both conceptual and pragmatic answers to this concern. On the conceptual side, as noted above, the rights protected by the tort of public nuisance are not protected from all interferences but, being claims in nuisance, are only protected from substantial interference.Footnote 174 On the pragmatic side, the law of costs and the “real and intangible costs of litigation”Footnote 175 furnish “a very strong reason why such suits will not be frequent”.Footnote 176 Moreover, even if obdurate claimants bring hopeless or vexatious claims, modern civil procedure allows judges and defendants to deal with these actions prior to a trial.Footnote 177
The final and most famous rationale is that of multiplicity – that one accident might lead to many suits against a defendant.Footnote 178 As Antolini notes, although, in the past, courts might have been overwhelmed by these types of cases, and therefore needed protection, modern law has a multitude of procedural mechanisms (such as representative or mass proceedings and joinder/consolidation orders) for dealing with such claims.Footnote 179 Moreover, as others have pointed out, it must be remembered that the defendant's “acts were tortious”Footnote 180 and the “mere fact that a great number of people” have been affected is not usually seen as “a disqualification from bringing suit”.Footnote 181 Accordingly, the defendant in a case of public nuisance does not have any “special claim … to pity”Footnote 182 and the concern of multiplicity is not one which has much resonance under modern conditions. Thus, when these three conceptually justified limitations (as to particularity, substantiality and directness) are properly understood and combined, there does not appear to be a need for a further arbitrary and unprincipled restriction on the right of claimants to succeed in a suit in public nuisance, even if one thought that imposing such a restriction was an appropriate function for the court.
Having examined the concept of special damage in general, the next sections turn to two more specific issues in the special damage inquiry, namely whether pure economic loss or personal injury should be recoverable utilising the tort of public nuisance.
C. Pure Economic LossFootnote 183
A concern often raised in relation to the tort of public nuisance is that it is “particularly anomalous”, since it allows claimants to recover for pure economic loss that would not generally be recoverable if the action had been based “on any other principle of tortious recovery”.Footnote 184 Thus, the reasoning goes, if there are valid reasons of principle or policy to negate liability for pure economic loss in negligence (or other torts), those same reasons should apply equally to a case of public nuisance.Footnote 185 As Witting argues, “an anomaly exists where the [economic] loss is caused by negligence”, since if “the action is framed in public nuisance it is likely to succeed, but if framed in negligence, it will almost certainly fail”.Footnote 186 Similarly, in Ball v Consolidated Rutile, the court noted that it “would be a quite unsatisfactory state of affairs if upon the same facts … the plaintiffs were able to avoid satisfying the test for proximity and recover in nuisance damages for economic loss” that would be irrecoverable in negligence.Footnote 187
However, this concern is misguided if one focuses on the different rights protected by the different torts. The common law does not have a problem per se with awarding pure economic losses, since it does so routinely in actions for defamation or when the claimant and defendant are in a special relationship.Footnote 188 What the common law finds problematic is awarding damages for economic losses that do not flow from the violation of a right – situations of damnum absque injuria.Footnote 189 Thus, the reason why an action for pure economic loss fails in a typical negligence case is that claimants cannot point to any right of theirs (to bodily integrity or property, for example) that has been interfered with by the defendant. Conversely, the reason why claimants succeed in actions for defamation is that their reputational rights have been wrongfully interfered with by the defendant.Footnote 190 Therefore in situations where there has been a violation of the claimant's passage or fishing rights that is direct,Footnote 191 courts are correct to award damages for pure economic loss. The fact that the claimant cannot sue in negligence or private nuisance is neither here nor there. Thus, although doubt is sometimes cast on the House of Lords decision in Tate & Lyle Food & Distribution Ltd. v G.L.C. for just this failing,Footnote 192 it is submitted that the result – which denied recovery for negligence and private nuisance but allowed recovery for pure economic loss in public nuisance – is unimpeachable on the conceptualisation advanced in this article. As the claimant had no proprietary right to a particular depth of the River Thames – its riparian rights being limited to “access to the water in contact with their frontage” – its claim in private nuisance and negligence rightly failed.Footnote 193 As it did, however, enjoy “a right to pass and repass over the whole width and depth of the water in the river” and its pure economic loss flowed from its inability to navigate (as opposed to the inability of its customers), its claim in public nuisance rightly succeeded.Footnote 194
D. Personal Injury
Can damages for personal injury be recovered using the tort of public nuisance?Footnote 195 For several generations, there has been a divergence of opinion between academics and the courts on this issue. On the academic side, the preferred answer has been in the negative.Footnote 196 Several reasons have been offered for this position. The first is that the awarding of damages for personal injury in public nuisance is ahistorical, since, prior to about 1840, such actions were conceived as actions in negligence.Footnote 197 Second, it has been pointed out that, in practice, liability for personal injuries for a public nuisance almost invariably involves an examination of whether the defendant was negligent.Footnote 198 Even in situations where liability appears to be strict, such as in Wringe v Cohen, the facts surrounding the case – visible disrepair for three yearsFootnote 199 – suggest that the result would not have been any different if it had been decided on negligence principles.Footnote 200 A third reason for denying recovery is that this would bring public nuisance in line with more recent developments in relation to private nuisanceFootnote 201 and the rule in Rylands v Fletcher,Footnote 202 where the House of Lords have denied the ability of claimants to recover damages for personal injury. Thus, as F.H. Newark pointed out in 1949, the continued allowance of damages for personal injury in public nuisance “is equally offensive to the legal historian and the jurisprudent”.Footnote 203
For the English courts, however, personal injury is seen to be the clearest example of special damage.Footnote 204 The leading modern case is In Re Corby Group Litigation.Footnote 205 In that case, the defendant asked the court to strike out the public nuisance claims of 18 litigants (who had alleged that they had suffered limb deformities) on the basis that recovery for personal injury was inconsistent with the modern developments in relation to private nuisance and Rylands v Fletcher noted above. The court ultimately came to the conclusion that, given the long line of Court of Appeal authority permitting such recovery, such a change could only be effected by the Supreme Court.Footnote 206 The court also indicated, however, that it would not have been inclined to change the law had it been competent to do so.Footnote 207 It reasoned that, since 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”, it would be difficult to justify “why a person whose life, safety or health has been endangered” and “who suffers personal injuries as a result should not be able to recover damages”.Footnote 208
In essence, the court applied the orthodox crime-in-tort conceptualisation of public nuisance and, as such, its conclusion is subject to all the criticisms made of that view in the second section of this article (i.e. it is in violation of basic private law principles related to privity and the actionability of crimes). Moreover, allowing the tort to directly protect rights to personal integrity creates confusion and potential incoherence in the law,Footnote 209 especially if the protections offered by the tort of public nuisance are different than those offered by trespass to the person and negligence.Footnote 210 These well-defined causes of action protect our right to bodily integrity in a way, it would be hoped, that accommodates the rightful claims of both claimants and defendants and these protections do not need to be replicated, in a somewhat different fashion, by the law of public nuisance.Footnote 211
The way out of this unprincipled and incoherent cul-de-sac is to accept that the tort of public nuisance and the crime are distinct: the crime covers a wide variety of situations and “rag ends of the law”,Footnote 212 whereas the tort solely protects the rights – not otherwise protected by the private law – to pass and repass along the public highways and to fish in public waters. If this reconceptualisation is accepted, then there should be no recovery for personal injury in an action for public nuisance except in so far as such injury can be seen to be consequential upon the violation of these privately actionable public rights.Footnote 213 A classic example of this are situations, like those found in Ware v Garston Haulage Ltd. Footnote 214 and Dymond v Pearce,Footnote 215 in which a claimant has suffered personal injury as a result of colliding with a parked vehicle that has been left on the road for an inordinate amount of time so as to become an obstruction (and hence an interference with the passage rights of the claimants).Footnote 216 This does not mean that, in other situations, a person would have to suffer these injuries without remedy – they would merely be required to sue in the tort of negligence or trespass to the person and, like all other non-highway claimants, to prove that tort's requisite elements.
V. Conclusion
The purpose of this article has been to demonstrate three things. First, the current conceptualisation of the tort of public nuisance is flawed, since: (1) it is in violation of basic private law principles related to privity and the actionability of crimes and (2) if taken seriously would require that the tort be abolished (as torts protect private, not public, rights). Second, the rights at the heart of the tort of public nuisance are the privately actionable rights to pass and repass on public highways and to fish in public waters, and that it is plausible that a sophisticated legal system, like that of England, would recognise such rights. Third, a tort reconceptualised in this way can: (1) make sense of a judicially created regime of liability that is generally thought arbitrary (in the sense that it is seen to be unduly narrow in respect of the special damage requirement and overly generous in relation to pure economic loss) and (2) make sense of a general intuition that the recovery of damages for pure personal injuries is best left to the torts of trespass to the person and negligence. If the American experience is any indication, English courts will soon be faced with novel public nuisance claims relating to tobacco, firearms, gas additives, destruction of fishing stocks, lead paint, global warming and invasive species.Footnote 217 In order to reach just and comprehensible results in these cases, and to develop its existing law coherently, these courts will have to abandon the orthodox crime-in-tort law view of public nuisance and instead rely on a reconceptualisation that reflects the tort's true legal basis.
