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It is interesting to hear how the American law is developing. There is limited English authority regarding nuisance and a certain amount of academic resistance to the possibility. In his Introduction to the Law of Restitution, Peter Birks argued that a gain-based remedy should not be available for nuisance, as it is a "anti-harm wrong" and not an "anti-enrichment" harm. Soon after Millett, in Carr-Saunders v. Dick McNeil Associates Ltd [1986] 1 WLR 922, suggested that profits would be recoverable in a case involving a nuisance by interference with a right to light. Birks ultimately gave up on this distinction (Civil Wrongs - a New World (1991)) but others have continued to flirt with it.

After Saunders, in Stoke-on-Trent CC v. Wass [1988] 3 All ER 394, the Court of Appeal denied the defendant's claim for recovery for nuisance caused by breaching the claimant's monopoly to licence markets within a particular area and Nourse LJ was rather overly hostile to the possibility of having benefit-based recovery in this context. However, the facts of the case are rather special. There is a judicial presumption that markets breaching such a geographical monopoly cause harm and therefore an injunction is automatically available without proof of actual harm. However, the Court found that, as a matter of fact, the claimant suffered no loss from the breach in question. So, it was case of a "presumed nuisance", if you like, and, in this respect, not a terribly compelling case for gain-based relief (on the other hand, the fact that the defendant breaches of the claimant's rights were knowing and repeated might have been thought sufficient to outweigh this consideration).

I suspect that an English court might well find for the claimant in a Boomer-like case but we will have to wait and see.

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From: Doug Rendleman
Sent: 27 February 2007 19:44
Subject: Re: [RDG] ODG: Waiver of tort

Hi All,

I am following Calev Crossland from New Zealand about restitution for nuisance and the Canadian interchange about gain-based restitution.

The 4th Tentative Draft of the Restatement (Third) of Restitution, section 44, illustration 14 is restitution for a nuisance, measured by the value of a license. It was based on a damages case, Boomer v. Atlantic Cement, and Dan Friedmann's comment in Restitution of Benefits, 80 Columbia Law Review 504, 509, n. 28 (1980).

A recent United States Court of Appeals decision on restitution for nuisance says no - Marmo v. Tyson, 457 F.3d 748 (8th Cir. 2006). Judge Arnold's strong dissent says yes.