Date: Tue, 27 Feb 2007 15:07

From: Ken Oliphant

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

Sir, my head hurts ... Can I take a break?

--On 27 February 2007 14:54 +0000 Robert Stevens wrote:

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.

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Ken Oliphant, CSET Reader in Tort, School of Law, University of Bristol, Wills Memorial Building, Queens Road, Bristol BS8 1RJ.

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