Dear Colleagues;

The UK Supreme Court has delivered an interesting decision on private nuisance, in Jalla v Shell International Trading and Shipping Co Ltd [2023] UKSC 16 (10 May 2023), which I thought was worth noting. (I don’t recall seeing any other ODG comments on the case so far.) The decision of the court was that of Lord Burrows and as would be expected, gives an excellent general overview of the tort of private nuisance as well as dealing with the specific issue.

That issue was this: given that an oil spill which then drifts onto land constitutes a private nuisance (see the definition in para [2]: “where the defendant’s activity, or a state of affairs for which the defendant is responsible, unduly interferes with (or, as it has commonly been expressed, causes a substantial and unreasonable interference with) the use and enjoyment of the claimant’s land”), then does it amount to a “continuing nuisance” while the oil has not been cleaned up and still affects the claimant’s enjoyment of their land? Or is there simply one act of nuisance committed when the oil first reaches the land? The question was raised because it needed to be decided whether a limitation period had expired before applications were made to amend pleadings in the case.

The answer his Lordship gives is that the ongoing effects of an act of nuisance are not themselves the commission of a new act of nuisance. Here there was only one act of nuisance, occurring when damage was occasioned by the oil spill reaching the land, and where no further wrongful acts were committed by the defendant, there was no scope to extend the limitation period beyond 6 years from the initial damage.

Of course, there can be such a thing as a “continuing nuisance”, where a new right of action accrues on each new day that the nuisance is committed. See [26]:

a continuing nuisance is one where, outside the claimant’s land and usually on the defendant’s land, there is repeated activity by the defendant or an ongoing state of affairs for which the defendant is responsible which causes continuing undue interference with the use and enjoyment of the claimant’s land.

But the examples of such things, it seems, require some new activity by the defendant or for which the defendant is responsible. Tree root incursion where the living tree continues to spread out (or to suck up new amounts of moisture) are one example. Here, however, see [37]:

There was no continuing nuisance in this case (and there would be no continuing nuisance in the example of the one-off flood) because, outside the claimants’ land, there was no repeated activity by the defendants or an ongoing state of affairs for which the defendants were responsible that was causing continuing undue interference with the use and enjoyment of the claimants’ land…the cause of action accrued and was complete once the claimants’ land had been affected by the oil: there was no continuing cause of action for as long as the oil remained on the land.

This seems right to me.

The decision refers to a number of sources produced by ODG colleagues: see [2]:

Christian Witting, Street on Torts (16th edn, 2021) p 424; Clerk & Lindsell on Torts (23rd edn, 2020) para 19-01; John Murphy, The Law of Nuisance (2010) para 1.05; Donal Nolan, “‘A Tort Against Land’: Private Nuisance as a Property Tort” in Rights and Private Law (eds Donal Nolan and Andrew Robertson, 2012) pp 459, 463 – 465. 

His Lordshop also makes some useful points about other aspects of the tort of nuisance which I find I need to stress to my students- eg at [2] again, that it is the plaintiff, and not the defendant, who needs to have an interest in land:

But the creator of the nuisance can be sued whether or not that person still has (or perhaps ever had) any interest in the land from which the nuisance emanates (see para 44).

There is also a helpful summary at [18] of the current principles of nuisance arising from the decision in Fearn v Board of Trustees of the Tate Gallery (“Fearn”) [2023] UKSC 4, [2023] 2 WLR 339, which summary seems generally also a good account of the common law of Australia, with the important exception that our High Court has rejected the notion that “overlooking” can amount to an actionable nuisance. While Lord Burrows is not in any way critical of that aspect of the decision, reading this case reminded me that he was not himself a part of the Fearn decision, and I wondered whether he would have joined in that aspect if he had been. But of course he accepts that “overlooking” is now part of the law of the UK since then.

Regards

Neil