The Place of Private Nuisance in a Modern Law of Torts

Abstract

It is forty years since Professor Newark wrote despairingly of nuisance that “the subject as commonly taught comprises a mass of material which proves so intractable to definition and analysis that it immediately betrays its mongrel origins.” The “truest dictum in the books” was that of Erle C.J., who had once said in answer to the question, what is a nuisance?, that it was “immersed in undefined uncertainty.” Little has changed since 1949. Public and private nuisance still face life together in the textbooks, the universities and the law reports, despite the convincing evidence all round, much of it gathered in Newark's article, that they have little in common except the accident of sharing the same name. Making hoax bomb calls, obstructing the highway and holding a badly organised pop festival are as vulnerable to a public nuisance action as are the more traditional occurrences of special damage from atmospheric, water and noise pollution. Private nuisance has, if anything, become even more confused and confusing. Its chapter lies neglected in the standard works, little changed over the years, its modest message overwhelmed by the excitements to be found elsewhere in tort. Any sense of direction which may have existed in the old days is long gone. The action now encompasses not only smelly oil depots, noisy speedboats and the like but also dangerous natural hazards on the land and the only slightly less natural “user of premises for prostitution and the perambulations of the prostitutes and their customers.” Sometimes negligence is essential to liability, sometimes it is quite irrelevant.