Date: Tue, 27 Feb 2007 12:09

From: Robert Stevens

Subject: HCA on Non-Delegable Duty; the ODG in the HCA

I think the language of 'special damage' is ambiguous. Is what is meant that the claimant must show that he is factually worse off as a result of the public nuisance (ie that he has suffered loss) or must he show that it was his right to use the relevant public good which was violated, and not just that of a third party?

Now, there are certainly cases which say that it is enough that you suffer loss as a result of the public nuisance, and that it need not be your right to use which was infringed (eg Wilkes v Hungerford Market Co (1835) 2 Bing NC 281, 132 ER 110; Slade J in Gravesham Borough Council v British Railways Board [1978] 1 Ch 379). For myself, I think the better view is that it must be shown that it was the claimant's right to the use of the public good which has been infringed (see Ricket v Directors of the Metropolitan Railway Company (1867) LR 2 HL 175). For example, if the road is unreasonably blocked, users of the road may have a claim but not nearby shops who are adversely affected by their drop in trade. Similarly, if fishing grounds are negligently polluted, fishermen should have a claim for loss of livelihood but not fish restaurants for decline in sales.

Further, the violation of some of our rights are actionable without proof of consequential loss (eg the general rule in slander, subject to exceptions) whilst the violation of some other rights are actionable per se (eg the right not to be detained against my will). Into which category does public nuisance fall? I suspect that the violation of the right is only actionable upon proof of consequential loss, so that not everyone who is subject to gross delays on the highway due to a public nuisance can sue, but I don't know of a case which definitively resolves that.

RS

In message <57233E6DF803DF7125CD5566@Laptop> KA Oliphant writes:

Robert

Isn't your "right" merely "the right not to be caused special damage by an (unreasonable) obstruction of the highway", not a right not to be obstructed there per se?

I suspect you're now going to correct me as if I were an inattentive schoolboy... ;-)

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