Describe and illustrate the tort of public nuisance

In this essay we deal with what amounts to a public nuisance. Public nuisance is not the same as the tort of private nuisance. Public nuisance is a tort as well as a crime.

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In this essay we deal with what amounts to a public nuisance. Public nuisance is not the same as the tort of private nuisance. Public nuisance is a tort as well as a crime and arises when the injured party is a member of a class of the neighbourhood or community affected by the public nuisance. Whereas, private nuisance is suffered by individuals.

A definition of public nuisance can be found in Archbold: Criminal Pleading, Evidence and Practice.

 

"A person is guilty of a public nuisance (also known as common nuisance), who (a) does an act not warranted by law, or (b) omits to discharge a legal duty, if the effect of the act or omission is to endanger the life, health, property, morals, or comfort of the public, or to obstruct the public in the exercise or enjoyment of rights common to all Her Majesty's subjects."

Such a definition may be considered to be old fashioned these days and a more up to date approach might be considered to be more helpful.

Romer LJ in A-G v PYA Quarries (1957) stated that “Public nuisance is an act which materially affects the reasonable comfort and convenience of life of a class of Her Majesty's subjects."

As well as being a crime, it also exists as a tort but it is important to realise that it is primarily a crime in the sense that it is prosecuted by the Attorney General and this reflects the involvement of the public or a section of it. An example of a public nuisance might be the unauthorised and unreasonable use of the highway or the obstruction of the highway, but this may well need to be something substantial or significant.

As a tort, the claimant will need to demonstrate that they have suffered loss or damage beyond that suffered by other members of the public.

We need to consider what is meant by a class of Her Majesty’s subjects, and the number of people that may be affected. Does this mean that all persons in a locality must have been affected before any one or more may claim?

We are helped in this regard by Romer LJ’s approach in A-G v PYA Quarries (1957). The facts of the case being that the locality or neighbourhood in question was badly affected by the defendant's quarrying activities. These activities caused the neighbourhood to be showered by stones and splinters of stone, causing dust and vibrations.

The issue was whether these activities were a private nuisance (a tort and a civil matter alone). If so, were they also a public nuisance affecting all Her Majesty’s subjects living in the area?

In his judgement Romer LJ’s conclusions were surprisingly straightforward:

"I do not propose to attempt a more precise definition of a public nuisance than those which emerge from the textbooks and authorities to which I have referred. It is, however, clear, in my opinion, that any nuisance is 'public' which materially affects the reasonable comfort and convenience of life of a class of Her Majesty's subjects. The sphere of the nuisance may be described generally as 'the neighbourhood'; but the question whether the local community within that sphere comprises a sufficient number of persons to constitute a class of the public is a question of fact in every case. It is not necessary, in my judgement, to prove that every member of the class has been injuriously affected; it is sufficient to show that a representative cross-section of the class has been so affected for an injunction to issue."

 

Lord Denning took a slightly more pragmatic approach, as was his way, and added:

"...that a public nuisance is a nuisance which is so widespread in its range or so indiscriminate in its effect that it would not be reasonable to expect one person to take proceedings on his own responsibility to put a stop to it, but that it should be taken on the responsibility of the community at large."

 

We find that a whole manner of things have been the subject of claims in public nuisance.

 

In R v Ong (2001) the public nuisance included a betting scam in which the floodlights at a Premier Division football match between Charlton Athletic and Liverpool were to be sabotaged. Such actions were inherently dangerous to the thousands within the football stadium.

 

In R v Madden (1975) the defendant had telephoned a bomb hoax to a steel works. As a result the steel works’ business was disrupted for about an hour. James LJ. whilst accepting that hoax telephone calls falsely alleging that explosives had been planted could amount to an offence of public nuisance, took the view that the few employees present on site were not a sufficiently wide class of the public.

 

The cases of R v Ruffell (1991) and R v Shorrock (1994) were unusual in that they involved the prosecution of the organisers of "acid house" parties. The parties had been held at night in fields adjacent to residential property. Liability in public nuisance was allowed on the basis that they knew, or ought to have known, that there was a real risk of creating the sort of nuisance that in fact occurred. The organisers could hardly have not known about the major traffic disruption and the noise of the music, and the next day’s clean up operation.

 

In R v Millward (1986) a man’s infatuation was the subject of the question of whether there had been an act "which materially affects the reasonable comfort and convenience of life of a class of Her Majesty's subjects,” (using the words of Romer LJ in A-G v PYA Quarries (1957)).

 

The defendant apparently made hundreds of telephone calls to a young woman police officer with whom he had become infatuated, at the police station where she worked.

On the matter of whether there had been a 'public' nuisance, which 'materially affects the reasonable comfort and convenience of life of a class of Her Majesty's subjects.' Glidewell LJ stated: "Quite apart from anything else, this disrupts the whole operation of the police station to which these calls are directed, because a member of the public may wish to report an urgent matter such as a criminal offence, and cannot do so or is delayed in doing so because of this kind of behaviour on the part of the appellant."

This question was to receive the attention of the courts again in R v Johnson (Anthony) (1997) (obscene phone calls to women) and in R v Holliday and Leboutillier (2004) (threatening phone calls by animal liberation activists). The law was to be clarified by the appeals of R v Goldstein and Rimmington (2005).

A claimant who succeeds in their claim for public nuisance may seek remedies including damages and an injunction.

As we have seen nuisances exist under the common law. There are two types – ‘public’ nuisance and ‘private’ nuisance.

Public nuisances may at the same time be private nuisances. To be a public nuisance, it must affect a sufficient number of people for them to constitute a whole class of the population. Alternatively, it must be so widespread in its operation or indiscriminate in its effect that it would be unreasonable to expect any individual person to take action to stop it.

Finally we have observed that public nuisances can be many and varied. It could include obstruction, inconvenience or abusive or offensive behaviour, provided that, as a matter of fact, it is sufficiently severe.


(Word count  1252)

As always the essay lends itself to expansion and further research using the additional resources and links provided.

 

 

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