Claiming damages for personal injury in public nuisance

In Corby Group Litigation v Corby Borough Council, the Court of Appeal heard an appeal on 3 May 2008 directly from a decision of Master Leslie on 27 June 2007. The Court of the first instance had been asked to determine whether the claimants in the group could amend their claim to include damages for personal injuries allegedly caused by public nuisance.

The point was seen as significant enough to be given permission to leapfrog straight to the Court of Appeal from the decision of the Master. The defendant contended that, as a matter of law, damages for PI cannot be recovered in public nuisance.

This has not been challenged before in the courts. The defendant argued that the effect of the reasoning of the House of Lords in Hunter v Canary Wharf (1997) and Transco plc v Stockport MBC (2003) – neither PI cases – was that the previous authorities in the Court of Appeal and the lower courts could not stand. The defendant relied on Professor Newark’s article The Boundaries of Nuisance.

Professor Newark argues the word ‘nuisance’ had started to replace the word ‘negligence’ in judgments around the year 1840, which led to the confusion of actions for PI with actions for negligence. He writes that nuisance in all its forms should be restricted to claims concerning rights over land.

The Court of Appeal held that similar comments made in the speeches in the House of Lords were obiter dicta and, therefore, could not be relied on, although it also said that Hunter has raised the serious possibility that the House of Lords may in the future adopt the reasoning of Professor Newark and change the law.

In respect of private nuisance, although there was some doubt about it in the past, the House of Lords has made it clear that these are claims for interference with the enjoyment of land only. Such claims cannot include claims for damages for personal injuries. The same is true of claims under the rule in Rylands v Fletcher (1868).

In respect of public nuisance, however, there have been many cases since the middle of the 19th century in which damages for personal injuries have been awarded. Professor Newark and other academics have argued that such awards were a divergence from the law of negligence and are wrong in principle. It is perhaps surprising that this appears to be the first time the point has been argued in the English courts.

The Court of Appeal denied the appeal and the group action, including the public nuisance claim, continues. While reaching its decision on the law as it stands currently, the Court of Appeal indicated that it would be appropriate, should the claimants succeed at trial in public nuisance, for there to be a direct appeal to the House of Lords.

The trial of the generic issues, including the allegations in public nuisance, is due to be heard between February and May next year – and, if necessary, consideration will be given to a further appeal at that time.

Lord Goff in Hunter and Lord Hoffman in Transco have both given strong indications that the House may well reconsider these issues and find for the defendants.

Paula Whittell, BLM Manchester

Original Article: Post