I entirely agree with Andrew that there should be no doctrine of "abuse

of rights", but it depends what you mean by "abuse"': I have a driving

licence and therefore a "right" to drive a motor car, but not a right to

drive with impunity at 100 mph through the middle of a children's

playground. The problem with the Bradford v Pickles / Stephens principle

is that is absolute and thus gives rise to peculiar list of situations

absolutely unprotected by the law of nuisance and, it seems, negligence

as well.   These seem to be things that just miss being an easement,

which is a bizarre criterion for a list of activities that are outside

the law of negligence re personal injury.

Best wishes

Janet

Andrew Tettenborn wrote:

> I'm not sure if I go along with Janet. A right to do something, but

> only if it's reasonable, or provided it has no foreseeable

> consequences as regards someone else, isn't a very useful right. One

> of the powerful features of the common law is that its rights are

> strong ones: rights to act in a particular way /despite/ any effects

> on others. I see nothing wrong in saying that if you are diabetic and

> I own the only bottle of insulin for 100 miles, I should be entitled

> to take it, throw away the contents and laugh. The fact that I know

> this will kill you is beside the point. Indeed, it seems to me that if

> you say anything else you are resurrecting the "abuse of rights"

> analysis roundly, and in my view rightly, rejected in Pickles.

>

>

> Andrew

>

> -------- Original Message --------

> Subject:        Re: Stephens v Anglian Water Authority

> Date:        Thu, 28 May 2009 14:16:21 +0100

> From:        Janet O'Sullivan <jao21@cam.ac.uk>

> To:        Donal Nolan <donal.nolan@law.ox.ac.uk>

> CC:        Jason Neyers <jneyers@uwo.ca>, "obligations@uwo.ca"

> <obligations@uwo.ca>

> References:        <4A1C29D8.8050708@uwo.ca>

> <4EE0EF6A1AED4023BCFA324D8A7F21A3@LENOVO1143D358>

>

>

>

> Dear all,

>

> I have always thought that Stephens is wrongly decided, because it

> over-stretches the Bradford v Pickles "principle" that if the defendant

> has "the right" to extract the water then the claimant must have "no

> right" to complain. It is one thing for there to be no action in

> nuisance following Bradford v Pickles, but quite another thing for the

> same reasoning to deny a duty of care in negligence.  Worse, the Court

> of Appeal suggested that the result would have been the same even if the

> claimant had suffered personal injury: "It seems to us an inevitable

> logical consequence of the reasoning of their Lordships in Bradford

> Corporation v. Pickles that the claim in that case would have no less

> failed if the defendant's activities had resulted in subsidence of

> buildings or even personal injury".  And following the fact pattern of

> the case, this would presumably still apply even if the defendant had

> been warned in advance of the risk of personal injury and carried on

> regardless!

>

> Best wishes

> Janet

>

> Donal Nolan wrote:

> > Hi Jason

> >  

> > The water that was extracted was water percolating under the

> > defendant's land, and it had been held in the earlier case of

> > /Langbrook Properties v Surrey CC /[1969] 3 All ER 1424 that even

> > where this resulted in the abstraction of water from underneath the

> > claimant's neighbouring land, with the consequence that the claimant's

> > land or buildings were damaged, no claim would lie.  This was also

> > consistent with /Popplewell v Hodkinson/ (1869) LR 4 Ex Ch 248, where

> > it was held that a landowner did not have the right to have his land

> > supported by water.  /Stephens /holds that this is so even if the

> > claim is brought in negligence.  Fleming was critical of

> > /Stephens/ (104 LQR 183), and the Restatement, Second, takes a

> > different position (see para 818).    

> >  

> > Donal

> >

> >     ----- Original Message -----

> >     *From:* Jason Neyers <mailto:jneyers@uwo.ca>

> >     *To:* obligations@uwo.ca <mailto:obligations@uwo.ca>

> >     *Sent:* Tuesday, May 26, 2009 6:41 PM

> >     *Subject:* ODG: Stephens v Anglian Water Authority

> >

> >     Dear Colleagues:

> >

> >     I would be interested to find out your thoughts on /Stephens v

> >     Anglian Water Authority/. I have a gut feeling that it is wrongly

> >     decided since there seems to me to be a difference between

> >     preventing something from getting to the claimant and taking away

> >     something that is already on the claimants land. This distinction

> >     seems to be missed by the court when they argue that English law

> >     gives a 'right' to a land-owner to drain water from her land,

> >     which in the context of /Bradford Pickles/ seems better described

> >     as a privilege rather than a 'claim-right'.

> >

> >     Any thoughts,

> >

> >     --

> >     Jason Neyers

> >     Associate Professor of Law &

> >     Cassels Brock LLP Faculty Fellow in Contract Law

> >     Faculty of Law

> >     University of Western Ontario

> >     N6A 3K7

> >     (519) 661-2111 x. 88435

> >

>

> .

>

>  

>

> --

> Andrew M Tettenborn

> Bracton Professor of Law, University of Exeter

>

>

>

> Snailmail:

>

> Law School

> University of Exeter

> Rennes Drive

> Exeter EX4 4RJ

> England

>

>

> Phone:

>

> Tel:             01392-263189 (int +44-1392-263189)

> Fax:             01392-263196 (int +44-1392-263196)

> Cellphone:       07870-130528 (int +44-7870-130528)

>

>

>

> LAWYER, n.

> One skilled in circumvention of the law. (Ambrose Bierce, 1906).

>