Date: Fri, 5 Oct 2007 01:55

From: Neil Foster

Subject: Case name?

Dear John, Robert et al

I agree with Rob that this looks like the case you were thinking of, John (it is mentioned by Romer LJ in AG v PVA Quarries [1957] 770 at 779.) But it is interesting that the comment quoted is more in the nature of a "throw-off" remark (it is the last paragraph of a longish judgement) at the end of an interesting and important discussion about whether it was a crime to burn a dead body as opposed to burying it. I don't think Stephen J was really focused on the tort issues.

In any case one could take the view that by framing the principle as "having been done in such a situation and manner as to be offensive to any considerable number of persons" Stephen J was implying that it must have been apparent when the defendant was choosing how and where to do the act that it would foreseeably impact on some portion of the public. So he probably was taking into account mostly ex ante considerations.

Regards
Neil F

Neil Foster
Newcastle Law School
Faculty of Business & Law
MC159c, McMullin Building
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931

>>> Robert Stevens 4/10/07 10:47 >>>

The Queen v Price (1884) 12 QBD 247

It is not a crime, per se, to burn a body unless it amounts to a public nuisance.

"Though I think that to burn a dead body decently and inoffensively is not criminal, it is obvious that if it is done in such a manner as to be offensive to others it is a nuisance of an aggravated kind. A common nuisance is an act which obstructs or causes inconvenience or damage to the public in the exercise of rights common to all Her Majesty's subjects. To burn a dead body in such a place and such a manner as to annoy persons passing along public roads or other places where they have a right to go is beyond all doubt a nuisance, as nothing more offensive both to sight and to smell can be imagined. The depositions in this case do not state very distinctly the nature and situation of the place where this act was done, but if you think upon inquiry that there is evidence of its having been done in such a situation and manner as to be offensive to any considerable number of persons, you should find a true bill."

per Stephen J

However, I wonder whether this limitation is necessarily true in relation to a claim based upon a tort? If I am subject to the appalling smell of a burning human flesh as I pass along the highway, but the defendant is lucky that nobody else passes along the road at the same time before the wind changes, can it be the case that I have no claim because the body burner got lucky as to how many people drove along the road with their windows down at that time? Put another way, I am uncertain as to how safe it is to transpose rules from public nuisance as a crime into its role as a tort.

I can see how the potential, ex ante, of a wide class of persons being adversely affected by an activity, as opposed to only one or a limited number, is potentially relevant to whether the defendant is at fault for the purposes of public nuisance. My worry is why it should be relevant ex post.

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