Date: Thu, 3 Nov 2005 16:47:41

From: Robert Stevens

Subject: UK Compensation Bill Published

The defendants in the Court of Appeal decision in Daborn v Bath Tramways Motor Co Ltd were not in government service, so far as I am aware. It concerned the driving of an ambulance but the defendant is a private limited company. The NHS was created after the war.

Posner and some other economists assert that in English law the social utility is ignored. This is just wrong.

In nuisance we see the same sort of taking into account of public costs and benefits going on. In leafy North Oxford (where I am currently sitting) certain sorts of activities would be a private nuisance because of the nature of the locality. In the windy ghetto of East Oxford (where I live) they would not.

Perhaps Denning went too far when he said in Miller v Jackson:

"In summer time village cricket is the delight of everyone."

and seemed to give that as a reason for his decision that a cricket club was not committing a nuisance in firing cricket balls into the gardens of neighbours. But it seems clear that utility is relevant in nuisance. If in Hollywood Silver Fox Farm v Emmett the gun had been fired in order to kill vermin there would have been no liability. If the farmer had been shooting on a whim, because he happened to like loud noises, with the knowledge of the potential harm to his neighbour, he should be liable.

RS

Jason Neyers writes:

Dear Robert and others:

I am sure that I am probably wrong but I was under the impression that under English law the social utility argument was technically only valid in situations of government services (e.g., Denning in Hertfordshire). So it would be the law in the case you cited which I am assuming was a government services cases but it is not a general common law principle that social utility is relevant in all negligence cases (though it might be a subliminal undercurrent in many cases). That is, as I understand it, generally the Canadian law on the subject.

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