NUISANCE

3.1 As stated in the previous chapter, where a common law right of support has been infringed and has caused damage, an action will lie in nuisance.

The trouble with nuisance

3.2 Winfield described private nuisance as “an unlawful interference with a person’s use or enjoyment of land, or of some right over, or in connection with, it”,¹ although he had prefaced this with the comment that it is not a term capable of exact definition. As numerous writers have suggested, nuisance is an area rife with confusion. It has been called, inter alia, a tort of “mongrel origins”,² “immersed in undefined uncertainty”,³ and accused of lacking definition and any coherent goals or purpose.⁴ It has, it is said, become “so amorphous as well nigh to defy rational exposition”,⁵ being the common link between such diverse abominations as bad smells, crowing roosters, faulty cellar flaps and, of course, loss of support.

3.3 The student interested in the tort’s pedigree will find, even allowing for the customary difficulty in tracing “the threads of modern causes of action back into the tangled ball which was the early common law”, that “the nature of the origins of nuisance remains somewhat enigmatic”.⁶ Duly warned off, the Commission feels it would serve little purpose to attempt charting the tort’s murky past. Rather, we shall confine ourselves to questioning some accepted notions regarding the tort of nuisance, and its suitability to support cases.

A tort of strict liability?

3.4 There is judicial authority for the proposition that the withdrawal of lateral support from land is an actionable nuisance for which strict liability attaches without proof of any negligence.⁷ Strict liability is generally understood as the imposition of liability for damage or injury, without the need for the plaintiff to prove that the defendant intentionally or negligently caused this result.

3.5 In recent decades a number of writers have made comments on the general concept of strict liability, the flavour of which is succinctly conveyed by the title of an article by Winfield, “The Myth of Absolute Liability”.⁸ With respect to “the modern theory that a medieval man generally acted at his peril” the learned author states:

Generally, it [the phrase] means that whatever a man does will, if it injures someone else, make the doer guilty of a breach of law. To put it quite plainly, he is liable for every conceivable harm which he inflicts on another. Such a proposition is merely ridiculous. Life would not be worth living on such terms. Life never has been lived on such terms in any age or in any country.⁹

C H S Fifoot writes:

Academic conflict has most frequently raged around the suggestion that English law began with a doctrine, or, if the word be too strong, with a sentiment of strict or even absolute liability, which gradually, as if in obedience to some occult influence, mellowed into the correspondence of fault and compensation agreeable to nineteenth-century liberalism. Holmes, indeed, thought the story too simple to be true. He doubted whether the Common Law ever had a rule of absolute responsibility ...

It is not unfair to conclude that the evidence, fragmentary as it is, confirms Holmes in denying any initial premise of strict liability ... The prevailing tenor of judicial opinion in the first half of the nineteenth century, as far as so impalpable a phenomenon may be analysed, would seem to favour rather than to reject the presence of fault as a necessary element of liability both in Trespass and in Case.¹⁰

3.6 The foregoing casts doubt on whether strict liability ever really applied at common law, at least in the sense of liability imposed without proof of fault. If strict liability did apply, then it was not immune from development. With specific reference to nuisance, Fleming writes:

From its medieval origin stems an aura of strict liability, but the pervasive fault doctrine no more by-passed the law of nuisance during the 19th century than it did trespass. Thus although there is a regrettably lingering disposition to assume that once a condition has been labelled a nuisance there is nothing more to be said about liability, the law long ago compelled us to a more discriminating analysis. True, it is apparently for the defendant to exculpate himself (in contrast to negligence); but in most situations there is no longer any liability without some measure of fault, while in others more exacting standards have prevailed in response to modern policy demands for public safety.¹¹

3.7 In Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (The Wagon Mound (No 2)),¹² on appeal from the Supreme Court of New South Wales, the Privy Council held that creating a danger to persons or property in navigable waters fell in the class of nuisance in which foreseeability was an essential element in determining liability. Lord Reid stated:

It could not be right to discriminate between different cases of nuisance so as to make foreseeability a necessary element in determining damages in those cases where it is a necessary element in determining liability, but not in others. So the choice is between it being a necessary element in all cases of nuisance or in none. ... It is not sufficient that the injury suffered by the respondents’ vessels was the direct result of the nuisance if that injury was in the relevant sense unforeseeable.¹³

3.8 Individual cases, such as the one just mentioned, have not, however, clarified the position with respect to the applicability of strict liability to nuisance. As R W M Dias comments:

The dicta are confusing. Lord Wright once said: “The liability for a nuisance is not, at least in modern law, a strict or absolute liability” [Sedleigh-Denfield v O’Callaghan [1940] AC 880 at 904]. On the other hand, Lord Simonds has said: “For, if a man commits legal nuisance, it is no answer to his injured neighbour that he took the utmost care not to commit it. There the liability is strict, and there only he has a lawful claim who has suffered an invasion of some proprietary or other interest in land” [Read v J Lyons & Co Ltd [1947] AC 156 at 183]. Lord Reid has now said: “And although negligence may not be necessary, fault of some kind is almost always necessary and fault generally involves foreseeability” [Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (The Wagon Mound (No 2)) [1967] 1 AC 617 at 639].¹⁴

3.9 This confusion has caused much second-guessing as to the definition and application of “strict liability”:

... “strict” liability then quite simply means ... that the probative onus passes to the defendant, it being for him to persuade judge and jury that he took all the precautions the situation demands.¹⁵

In nuisance the position is, not that there need be no foreseeability of interference at all, but that there need be no foreseeability of an unreasonable degree of interference, which is the “event” constituting nuisance. It is this difference, perhaps, that Lord Wright contemplated when he said that nuisance is not strict [in Sedleigh-Denfield v O’Callaghan]. On the other hand, nuisance is stricter than negligence, since the taking of reasonable care to ensure that the interference shall not get out of hand is no defence; and this may be what Lord Simonds meant when he said that nuisance is strict [in Read v J Lyons & Co Ltd]. Is there any form of nuisance which is truly strict? The only one is the dubious case of the collapse of artificial structures on to the highway, supported by Wringe v Cohen [[1940] 1 KB 229], on which the Board [in The Wagon Mound (No 2)] reserved its opinion.¹⁶

[I]t must be admitted that where Wringe v Cohen applies the liability is certainly stricter than liability for negligence ... , but it is questionable whether there are now any other instances of strict liability for nuisance which cannot be explained as coming under Rylands v Fletcher or liability for the fault of independent contractors. ... It has been suggested that the true position is this: Liability for nuisance is strict in the sense that it is no defence for the creator of a nuisance to assert that he took all reasonable care to prevent it arising; but it is based on fault in the sense that he will not be liable where he could not reasonably have foreseen the kind of damage which might result and the way in which it might arise if he failed to use reasonable care.¹⁷

It would seem to follow [from The Wagon Mound (No 2)] that one cannot be liable for nuisance at all unless and until some injury is foreseeable. Any contrary position, moreover, would have competed invidiously with the principle of Rylands v Fletcher, by drawing within the orbit of strict liability all manner of perfectly “normal” activities, fraught with no more than the common level of risks. The only serious bid for exceptional treatment seems to be on behalf of certain rights appurtenant to land, like the right of natural support. These property rights, though traditionally protected by actions for nuisance, are outside the ordinary regime of nuisance at least in being treated as absolute (like the protection afforded by trespass against intrusions) rather than qualified by considerations of reciprocal reasonableness. It may just be therefore that they are also entitled to absolute protection against defendants who had no reason to anticipate an infringement, as when excavations cause a wholly unexpectable weakening of lateral support next door.¹⁸

Disadvantages of a strict liability regime

3.10 As the foregoing attests, the meaning of strict liability is unsettled. This is due in part to the evolving nature of the law in this area, as it seeks to adjust to developments in the law of negligence. Even the rule in Rylands v Fletcher, virtually a byword for the concept of strict liability, is not immune. A majority of the High Court recently held that this rule “should now be seen, for the purposes of the common law of this country, as absorbed by the principles of ordinary negligence”.¹⁹ Nevertheless, courts feel bound to endeavour enforcing such a regime. In the process, defendants may be burdened with liability out of measure with ordinary, non-legalistic notions of fault.

3.11 The decision in The Wagon Mound (No 2) was applied in a recent case before the House of Lords, Cambridge Water Co v Eastern Counties Leather Plc.²⁰ The facts in that case were that the defendant, a leather manufacturer, used at its tannery a solvent which seeped into the ground and was conveyed in percolating water to the plaintiff’s borehole 1.3 miles away, contaminating the water and rendering it unfit for human consumption. The plaintiff brought an action for damages in negligence, nuisance, and the rule in Rylands v Fletcher. At trial, the action was dismissed because, on the first two grounds, the defendants could not reasonably have foreseen that such damage would occur, and on the third ground because use of the solvent was held to constitute a natural use of the defendant’s land. The matter next went to the Court of Appeal, the plaintiff appealing, successfully, against the dismissal of the cause of action based on the rule in Rylands v Fletcher. The appeal was upheld, not on the basis of that rule, but on the holding that there was a parallel rule of strict liability in nuisance, namely, where the nuisance was an interference with a natural right incident to ownership, the liability was a strict one. The defendant appealed to the House of Lords, which allowed the appeal. Their Lordships said that foreseeability of harm of the relevant type was a prerequisite for recovery both in nuisance and under the rule in Rylands v Fletcher. They held, contrary to the finding of the trial judge, that use of the solvent by the defendant constituted a non-natural use of the land. It was also held, however, that pollution of the plaintiff’s water supply by the solvent was not foreseeable. Consequently the plaintiff’s action failed. Lord Goff, delivering the judgment, stated:

Of course, although liability for nuisance has generally been regarded as strict, at least in the case of a defendant who has been responsible for the creation of a nuisance, even so that liability has been kept under control by the principle of reasonable user - the principle of give and take as between neighbouring occupiers of land ... The effect is that, if the user is reasonable, the defendant will not be liable for consequent harm to his neighbour’s enjoyment of his land; but if the user is not reasonable, the defendant will be liable, even though he may have exercised reasonable care and skill to avoid it.

... We are concerned with the liability of a person where a nuisance has been created by one for whose actions he is responsible. Here ... it is still the law that the fact that the defendant has taken all reasonable care will not of itself exonerate him from liability, the relevant control mechanism being found within the principle of reasonable user. But it by no means follows that the defendant should be held liable for damage of a type which he could not reasonably foresee; and the development of the law of negligence in the past 60 years points strongly towards a requirement that such foreseeability should be a prerequisite of liability in damages for nuisance, as it is of liability in negligence. For if a plaintiff is in ordinary circumstances only able to claim damages in respect of personal injuries where he can prove such foreseeability on the part of the defendant, it is difficult to see why, in common justice, he should be in a stronger position to claim damages for interference with the enjoyment of his land where the defendant was unable to foresee such damage.²¹ (emphasis added)

3.12 In a New South Wales case, Fennell v Robson Excavations Pty Ltd,²² a developer employed the defendant excavator to remove soil from a property in Gosford, which it did in accordance with proper practice, leaving, in the words of the Court of Appeal, “a sound, stable bank of earth which presented no immediate threat to the plaintiffs’ land, building and improvements”.²³ The Court found that the excavator had acted entirely under the direction of the developer, and furthermore that the excavator had reasonable grounds for believing that the developer would erect a retaining wall which would protect the plaintiff’s property from any future damage resulting from the excavation. In the event, however, the retaining wall was not built because the developer went into liquidation, and six months after the excavation work had been completed, following heavy rain, land across the plaintiffs’ boundary subsided. The plaintiffs won judgment against the excavator for deprivation of support to their land. The defendant appealed on the grounds, inter alia, that:

1. the excavator was not in possession or occupation of the property where the excavation was carried out, and therefore could not incur liability for private nuisance;
2. when the excavation work was complete, the danger of subsidence was potential only, and no damage would have occurred had the retaining wall been built;
3. the developer’s failure to build the retaining wall was a new act intervening, which made the plaintiffs’ damage remote in law from the actions of the excavator; and
4. the damage and nuisance did not occur until after the excavator had left the site, and lost the power to abate the nuisance.

3.13 The appeal was dismissed. The Court of Appeal was able to cite numerous precedents to the effect that the creator of the nuisance is personally liable for it,²⁴ notwithstanding that he or she is not in occupation of the property from which the nuisance emanates, is employed or contracted by the occupier to carry out the acts in question, is powerless to abate the nuisance, and that other causes contributed to the damage. Of overriding importance was the causal connection between the excavator’s act and the ultimate damage. There was no suggestion of fault on the part of the excavator, who it was said had carried out the work “properly and without negligence”.²⁵ Justice Glass stated:

By stressing the findings made by the trial judge that the excavator left the site with the excavation in proper condition fully expecting that the vertical sides would be retained by a wall and remained ignorant of the developer’s default until the damage occurred, it can be made to appear that to hold him liable is offensive to basic notions of fairness. But the justice of this result according to law follows from two propositions. The first is that the withdrawal of the lateral support from land is an actionable nuisance for which strict liability attaches without proof of any negligence. The second is: “This negative duty (not to interfere with that support) is broken once for all by him who originally made the excavation, and he alone is and remains responsible for the consequences of his act whenever those consequences ensue” ...²⁶ (emphasis added)

3.14 The Court of Appeal upheld the trial judge’s application of the principle of foreseeability, based on The Wagon Mound (No 2), but supported the finding that the failure by the developer to erect a retaining wall was foreseeable. The consequence was that the plaintiff’s damage was not remote in law from the defendant’s excavation.²⁷

3.15 As Justice Glass acknowledges in the passage quoted above, the law in this area can pose a challenge to “basic notions of fairness”. One commentator notes:

[P]ure strict liability, shorn of negligence, …[is] not only morally inadequate, paying as it does crucially insufficient attention to the avoidability of injury ... Strict liability, more important still, never succeeds in offering more than a logically vulnerable theory, especially in relation to the defendant’s creation of dangerous conditions resulting in harm, precisely because the creation of such danger cannot in the end be divorced from a defendant’s foreknowledge or foresight or the lack of it; a theory of strict liability which, by its very definition, eschews all considerations of negligence is … not really workable.²⁸

3.16 As well as the moral objection that may be taken against a strict liability regime, there may be economic factors to take into account. In Blewman v Wilkinson,²⁹ Justice Cooke of the New Zealand Court of Appeal, while specifying that his comments were made in the context of the local topography, stated:

The idea of imposing strict liability on a subdividing owner when a subsidence occurs perhaps many years later, and notwithstanding that he acted on proper professional advice at the time, is unattractive. Unless he or his agents can be shown to have been at fault it seems to me more just to leave the loss lying where it falls. Hillside subdivisions and the like are so typical in this country and slips and other subsidences such commonplace hazards that, unless fault can be demonstrated, a purchaser can fairly be expected to accept the risk. Insurance (if any) should be his concern.³⁰

3.17 While this case was dealing with a subdivision, Bradbrook and Neave, in Easements and Restrictive Covenants in Australia, maintain that the principles enunciated by the New Zealand Court of Appeal could be used to attack the validity of the principle of strict liability in any case of withdrawal of support, and add “[i]t may be that future courts will determine the liability of the original excavator in all situations on the issue of negligence and will refuse to apply the concept of strict liability.”³¹ We will turn to the subject of negligence shortly.

BREACH OF STATUTORY DUTY

3.18 It was noted in the previous chapter³² that regs 33 and 34 of the Local Government (Approvals) Regulation 1993 insert conditions into every approval to erect a building, requiring that measures be taken to prevent soil movement or damage to buildings on adjoining land. Failure to comply with these conditions:

1. attracts a penalty, as specified in the principal Act; and
2. may be restrained or remedied by any person by an application to the courts.

3.19 In Anderson v Mackellar County Council³³ the New South Wales Court of Appeal held that provisions in the Local Government Act 1919 (NSW) and Ordinances made pursuant thereto created private rights and obligations between a “building owner” and an adjoining owner, conferring upon the adjoining owner a cause of action for breach of statutory duty. In particular, s 318(8) of the Local Government Act 1919 gave power to make Ordinances “defining the respective rights duties and obligations of owners and occupiers of adjoining buildings or lands in relation to external walls, party walls” and so on. Further, s 318(17) conferred the power to make Ordinances which relate specifically to the underpinning and shoring of adjoining buildings. However, even had such an inference been lacking, Justice Jacobs observed that he could find no “context of the legislation to the contrary of any intention to create private rights”.³⁴

3.20 Although Anderson was concerned with the former clause 44 of Ordinance 71, the later decisions in Kebewar Pty Ltd v Harkin³⁵ and Pantalone v Alaouie³⁶ held that the same principles applied in relation to its successor, Pt 31.4 of Ordinance 70.

3.21 The approach adopted in regs 33 and 34 makes further consideration of the issue of breach of statutory duty unnecessary. This is because the obligations set out in regs 33 and 34 are not imposed directly as obligations arising under the Regulations. Rather, the obligations arise by way of conditions of an approval to erect a building under the Local Government Act 1993 (NSW).

3.22 In addition, the legislature has provided specific criminal and civil sanctions for a breach of those conditions of approval.³⁷ In light of these specific provisions, contained as they are in such a recent expression of the views of the legislature, the Commission does not propose any amendment to regs 33 and 34.

THE RULE IN DALTON v ANGUS

3.23 If the prevailing law on the right to support can sometimes lead to an overly favourable result for the plaintiff owner of collapsed land at the expense of a morally innocent defendant, it also has the potential to leave the plaintiff owner of a collapsed building with little or no redress. At this point it is worth reiterating the words of Lord Penzance which we quoted in the previous chapter:

... [I]t is the law, I believe I may say without question, that at any time within twenty years after the house is built the owner of the adjacent soil may with perfect legality dig that soil away, and allow his neighbour’s house, if supported by it, to fall in ruins to the ground.³⁸

3.24 These words dramatically illustrate one of the central shortcomings in an area of law ill-equipped to deal with modern urban realities, and an anachronism with regard to modern developments in the law. Dalton v Henry Angus & Co (hereinafter referred to as Dalton) is the leading case on the law of support for buildings from adjacent land. It is authority for the proposition that buildings or structures, “artificially imposed upon land”, are not entitled to such support without prescription or grant.³⁹ While the principles established in Dalton continue to apply in New South Wales, a number of judges have indicated dissatisfaction with the state of the law, such as Justice Stephen, who observed (in Stoneman v Lyons) that “the rule in Dalton v Angus is clearly ill-adapted to conditions in modern cities”.⁴⁰

3.25 As noted in DP 27, New Zealand took the opportunity to abandon Dalton almost a quarter of a century ago in Bognuda v Upton & Shearer Ltd.⁴¹ The New Zealand Court of Appeal characterised Dalton as a decision founded on the acquisition of a right to support by prescription, which was no longer available in New Zealand. Having thus disposed of Dalton, Justice North could “see no reason why the range of negligence which was greatly extended in Donoghue v Stevenson ... should not be applied in this field”.⁴² Consequently, the Court found that the defendant excavator had owed the plaintiff a duty to exercise reasonable care for the protection of the latter’s wall.

3.26 Although the High Court felt constrained from following New Zealand’s example by the fact that prescriptive easements could, in theory, be acquired in Australia, nevertheless Justice Stephen stated obiter in Stoneman v Lyons:

… I regard it as at least arguable that, as the law of negligence now stands, the threatened burdening of land with an easement of support in favour of a building next door does not entail the consequence that the owner of the land thus threatened may excavate up to his own boundary regardless of the effect upon his neighbour’s building.⁴³

3.27 In Pantalone v Alaouie⁴⁴ the plaintiff owned a property at No 310, on which stood a building housing a flat and a restaurant, both of which were tenanted. The defendant owned vacant land at No 312, on which excavation work was commenced for the purpose of erecting a building. To this end the defendant engaged an engineer and a backhoe operator. As a result of the excavation work the building at No 310 collapsed. The plaintiff claimed against the defendant, the engineer and the backhoe operator on a number of grounds, not all of which we propose to deal with here.

3.28 With respect to the common law right of support, the Court found that the soil would have collapsed even if there had been no building on No 310 exerting additional pressure, but, because the evidence for that finding was not admitted against the defendant, the plaintiff could not succeed against him on this ground.⁴⁵ Applying Fennell v Robson Excavations Pty Ltd⁴⁶ the Court held that, while liability in nuisance normally attaches to the occupier, it may also be incurred by someone creating a nuisance on land in the occupation of another. On this basis the backhoe operator was liable as the creator of the nuisance, but not the engineer.

3.29 The defendant was held liable under the statutory duty imposed by Pt 31.4 of Ordinance 70, predecessor of the current Reg 34⁴⁷ . The defendant and the backhoe operator having thus already been found liable, it was unnecessary for the court to consider their liability in negligence.

3.30 With respect to negligence, the Court found that as between the engineer and the plaintiff, there was such a relationship of proximity as to give rise to a duty of care owed by the former to the latter. As the engineer drew the plans and knew of the imminent danger of collapse and the limits of his client’s experience in relation to excavating, he was held to be in breach of that duty and liable in negligence, notwithstanding that the defendant who had hired him may have been under no duty of care to the plaintiff.⁴⁸ On this last point Justice Giles commented:

I return then to what may be called the Dalton v Henry Angus & Co point. As acknowledged by Stephen J in Stoneman v Lyons ... , the rule in [Dalton] is “clearly ill-adapted to conditions in modern cities”. If it prevents the recognition of a duty of care owed by one owner to an adjoining owner, I do not see why it should be given a wider effect so as to prevent a duty of care being owed by someone other than the owner of land. A negligent driver who knocks down the wall of a building will be liable to the building owner. As long ago as 1850 it was held that a stranger who removed support to land could be liable where he would not be liable had he been the adjoining owner: Jeffries v Williams (1850) 5 Exch 792. In my view a negligent engineer in the position of Mr Mourad can also be so liable. If the owner of land can excavate negligently on his land, that must be regarded as an anomaly founded upon the primacy given to the incidents of ownership of land.⁴⁹

3.31 This case illustrates the piecemeal nature of the law in this area, where, due to the “anomalies” to which Justice Giles refers, various defendants are subject to liability arising out of the same incident, but under different regimes, for what appear to be quite arbitrary reasons. Similar thoughts to those of Justices Giles and Stephen are echoed by Justice Richardson in Blewman v Wilkinson⁵⁰ . He says:

As D M Campbell J pointed out in Thynne v Petrie [1975] Qd R 260, the law concerning rights to lateral and subjacent support took shape in the second half of the last century, before the development of the concept of tortious negligence. The action for negligence has clearly expanded into this field and a landowner proposing to develop his land for subdivisional purposes owes a duty to subsequent purchasers to take reasonable care to ensure that the development is properly planned and carried out. The contractors and professional advisers concerned in the subdivision also have their own responsibilities in negligence. That being so a further remedy, particularly one imposing absolute liability, should not, in my view, be provided by the Courts by way of extension of 19th century property rights unless clearly called for by the social conditions of today.⁵¹

The foregoing comments and our earlier discussion of nuisance and its shortcomings have alluded repeatedly to negligence principles, and it is to this topic we now turn.

NEGLIGENCE

3.32 The maxim most often employed in connection with the right to support, and nuisance generally, is sic utere tuo ut alienum non laedas, or “so use your own property as not to injure another’s”. This might be regarded as the “good neighbour” principle of nuisance, and is concerned with balancing competing uses of land. Its focus is the protection of a particular interest.⁵² Of greater significance this century has been the “good neighbour” principle of negligence, laid down in the landmark case of Donoghue v Stevenson in which Lord Atkin stated:

The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question. ⁵³

3.33 Here the emphasis is on the defendant’s conduct.⁵⁴ Many of the comments by judges and academics quoted in this chapter have indicated that negligence, rather than nuisance, is the preferable realm in which the right to support should operate.

Physical versus non-physical damage to land

3.34 The “classic” nuisance action concerned non-physical damage to land, that is, interference with the enjoyment of land through an intangible, most commonly noise or smell.⁵⁵ Nuisance has been referred to as an environmental tort,⁵⁶ and some commentators have suggested that it still has a valuable role to play in the area of environmental protection. One commentator argues that categorising physical harm as private nuisance is anomalous because it was once the province of negligence. Returning it there will free nuisance to focus on protecting occupiers against non-physical interference with the enjoyment of their land.⁵⁷ In similar vein, Fleming states that nuisance performs a function complementary to modern day development controls, but that this role has become obscured by being extended to cover situations involving physical damage.⁵⁸ Linden also refers to the role of nuisance in environmental protection as complementing an imperfect legislative system.⁵⁹

3.35 The fact that cases of physical damage to land have occasionally been characterised as instances of nuisance can be attributed to the confusion that has long existed in this area. Treatment of the subject of nuisance in textbooks rarely makes a distinction between these kinds of damage. A trend has, however, emerged to treat cases of physical injury to land as properly pertaining to negligence. For example, in the judgment of the majority of the High Court in Burnie Port Authority v General Jones Pty Ltd it was stated:

... ordinary negligence has progressively assumed dominion in the general territory of tortious liability for unintended physical damage, including the area in which the rule in Rylands v Fletcher once held sway.⁶⁰

Similarly, Fleming comments:

[Negligence] has been imperceptibly displacing nuisance as the appropriate basis of liability for physical harm, especially in cases of isolated (as distinct from continuing) occurrences ... it might be better now to exclude all physical harm from the province of nuisance.⁶¹

3.36 In support cases, the gist of the action is physical damage, or the threat of it, generally occasioned by an isolated unintentional event, rather than an ongoing state of affairs. In this regard it more closely resembles negligence than a typical nuisance case such as emission of noxious fumes from a factory.

3.37 In the recent case of Hunter v Canary Wharf Ltd,⁶² the House of Lords held it to be established law that an action in private nuisance is based on the plaintiff’s right to the enjoyment of his or her land, and that interference with that right “will generally arise from something emanating from the defendant’s land [such as] noise, dirt, fumes, a noxious smell, vibrations, and suchlike”.⁶³ Furthermore, a majority held that, in general, only a person with a proprietary interest in the land can sue. Extending the category of persons entitled to sue “would transform [nuisance] from a tort to land into a tort to the person, in which damages could be recovered in respect of something less serious than personal injury and the criteria for liability were founded not upon negligence but upon striking a balance between the interests of neighbours in the use of their land”.⁶⁴ This, in Lord Goff’s view, is an unacceptable way to develop the law. This decision is consistent with a view that in cases concerned with loss or damage caused by removal of support, negligence provides a more appropriate remedy than nuisance.

LIABILITY FOR INDEPENDENT CONTRACTORS

3.38 Vicarious liability, in which one person is held to account for the wrongdoing of another, is a type of strict (in the sense of no-fault) liability.⁶⁵ In Australia, it applies in employment situations, where an employer is held vicariously liable to third parties for tortious acts of an employee which are within the scope of the employee’s authority and committed within the course of the latter’s employment.⁶⁶ In general, a principal will not be held vicariously liable for the tortious acts of an independent contractor.⁶⁷ Various criteria are used to distinguish between a contract of service or employment (between employer and employee) and a contract for services (between principal and independent contractor), but these are not our concern for present purposes.

3.39 The English case of Bower v Peate⁶⁸ established the principle that a landowner is liable for the acts of an independent contractor which deprive neighbouring land of support. In his judgment Chief Justice Cockburn stated:

... a man who orders a work to be executed, from which, in the natural course of things, injurious consequences to his neighbour must be expected to arise, unless means are adopted by which such consequences may be prevented, is bound to see to the doing of that which is necessary to prevent the mischief, and cannot relieve himself of his responsibility by employing some one else - whether it be the contractor employed to do the work from which the danger arises or some independent person - to do what is necessary to prevent the act he has ordered to be done from becoming wrongful. There is an obvious difference between committing work to a contractor to be executed from which, if properly done, no injurious consequences can arise, and handing over to him work to be done from which mischievous consequences will arise unless preventative measures are adopted.

... It is true ... the removal of the soil, to the support of which an adjacent building or land may be entitled, is not in itself wrongful, and becomes so only when damage to the adjoining property results; whence it follows that if by artificial means of support the damage can be prevented, no cause of action arises. But it is equally clear that if effectual means of prevention fail to be applied, and damage once results, the act of removal becomes wrongful, and an action can be at once maintained.

In the present instance preventative measures adequate to the occasion having failed to be provided, the removal of the soil was followed by actual damage to the plaintiff’s house, and the act of removal was therefore wrongful as causing a wrong done to the plaintiff. But the act of removal was an act done by the order and authority of the defendant - in other words, was the act of the defendant; and no man can get rid of liability for injury occasioned to another by a wrongful act by seeking to throw the responsibility on an agent whom he has employed to do the act.⁶⁹ (emphasis added)

3.40 Atiyah regards support cases as being in a class of their own, rather than coming within the purview of nuisance with respect to liability for independent contractors.⁷⁰ Nevertheless, he states that a number of English cases, based on the “dangerous operations” doctrine enunciated in Bower v Peate, affirm liability in nuisance for the acts of independent contractors. For example, in Alcock v Wraith⁷¹ Mr and Mrs Swinhoe hired an independent contractor, Wraith, to carry out re-roofing works to their terrace house. The roof extended over a number of houses, uninterrupted by the party walls between the neighbouring properties. Alcock owned the adjoining property, and noticed damp in a first floor room. A survey revealed that the tiles used in the re-roofing had encroached slightly over the party wall dividing the properties, and that the contractor had removed slates from Alcock’s roof, destroying the overlap between the remaining slates allowing moisture to penetrate. The contractor was subsequently adjudged bankrupt. At both the trial and subsequent appeal the Swinhoes were held liable to Alcock in trespass, nuisance and negligence. It was held that while there was a general rule that an employer is not liable for the torts of an independent contractor, there was an exception where there existed a special risk or where the work from its very nature is likely to cause danger or damage. In the present case the Court decided the question of special risk in favour of the plaintiff on the basis of evidence which had stated that it was notoriously difficult to make a waterproof joint between slates and tiles.⁷² Furthermore, while the Swinhoes were entitled to have work done on the joint between the two roofs, if they exercised that right they were under a duty to see that reasonable skill and care were used in the operation, and that duty could not be delegated to an independent contractor.

3.41 In Australia, courts have been reluctant to follow the English precedent. Torette House Pty Ltd v Berkman⁷³ was a nuisance case in which the defendant employed as an independent contractor a plumber who, in the course of his work, mistakenly turned on a stopcock which allowed water to escape and cause considerable damage to the plaintiff’s property. An appeal from the Supreme Court of New South Wales was dismissed by the High Court, which held that the plaintiff had no cause of action against the defendant in either nuisance or under the rule in Rylands v Fletcher. The defendant had not caused the nuisance, nor did he employ the plumber “to do any act of which the nuisance was the necessary or a natural consequence”.⁷⁴ Nor was there considered to be any ground upon which a principal could be held liable for the negligence of an independent contractor, because, as Chief Justice Latham stated:

The ordinary employment of a competent plumber to repair a water service, which almost invariably involves turning the water supply off and on, cannot be regarded as an extra-hazardous or inherently dangerous operation ... involving special danger of damage to others.⁷⁵

3.42 The High Court, in Stoneman v Lyons,⁷⁶ questioned the existence at common law of a doctrine of extra-hazardous activity, and settled the matter in Stevens v Brodribb Sawmilling Co Pty Ltd,⁷⁷ where it was stated that the doctrine of extra-hazardous acts, whereby an exception is said to arise to the general rule that a principal is not liable for the negligence of his independent contractor, “has no place in Australian law”.⁷⁸ Interestingly, in the recent case of Burnie Port Authority v General Jones Pty Ltd⁷⁹ the majority of the High Court, in discussing the concept of the “non-delegable” duty, referred to its previous decision in Kondis v State Transport Authority,⁸⁰ and “certain categories of case” in which it would not suffice to discharge the duty of care merely by hiring a competent independent contractor. In such cases a duty of care of a special and more stringent type arose, a “duty to ensure that reasonable care is taken”. An example of such a non-delegable category is “adjoining owners of land in relation to work threatening support or common walls”. The element common to most of the categories enumerated was said to be “the central element of control”, marked by special dependence or vulnerability.⁸¹ The type of case envisaged might be one in which a defendant is in control of premises, and has taken advantage of that control to introduce thereon a dangerous substance or activity. The plaintiff is a person outside the premises and without control over what takes place, but whose person or property is thereby exposed to a foreseeable risk of danger. The latter is therefore in a position of special vulnerability and dependence. The consequence is that the defendant is under a duty of care which “varies in degree according to the magnitude of the risk involved and extends to ensuring that such care is taken”.⁸²

3.43 In Kondis, in a discussion concerning non-delegable duties, the Court referred to Dalton v Angus and the following statement of Lord Blackburn:

[A] person employing a contractor to do work is not liable for the negligence of that contractor or his servants. On the other hand, a person causing something to be done, the doing of which casts on him a duty, cannot escape from the responsibility attaching on him of seeing that duty performed by delegating it to a contractor.⁸³

3.44 Justice Mason regarded the liability of the landowner and contractor in Dalton for the actions of the subcontractor which caused subsidence on adjoining land as arising from their personal duty to see that care was taken not to interfere with the neighbour’s right of support.⁸⁴ He said:

In a number of cases a person has been held liable for damage caused through the interference with the rights of an adjoining landowner due to the negligence of an independent contractor. ...In such cases it may well be that the courts proceeded according to a view, which they did not express, that the relationship of the parties as adjoining landowners was such that the rights of one necessarily involved a correlative duty on the part of the other, when authorising work which might interfere with those rights, to ensure that reasonable care and skill was exercised rather than a duty merely to exercise reasonable care and skill which in many instances might be satisfied by the appointment of a competent contractor.⁸⁵

3.45 Justice Mason proceeded to give examples of situations which generate a special responsibility or duty to see that care is taken, stating:

In these situations the special duty arises because the person on whom it is imposed has undertaken the care, supervision or control of the person or property of another or is so placed in relation to that person or his property as to assume a particular responsibility for his or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised. As we have seen, the personal duty which has been recognised in the other cases which I have discussed, such as Dalton v Angus, may rest on rather different foundations which have no relevance for the present case.⁸⁶

3.46 It seems, therefore, that support cases may constitute a discrete category in which a principal will be held vicariously liable for the torts of an independent contractor. Regardless of whether such liability arises as a result of support cases constituting a class of their own or a sub-class of nuisance, Atiyah does not consider the result unjust:

There is a good deal to be said for the view that a person should be liable in nuisance for damage caused to his neighbour by the way his premises have been used, whether the actual negligence is his or that of an independent contractor, or indeed, a member of his household. If the negligent contractor can in fact pay for the damage, well and good, for the householder will have a right to an indemnity from him. But if the contractor cannot pay, or if he cannot be traced ... , it is hard to believe that the sense of justice of the average man would be shocked by imposing liability on the owner or occupier of the property. ... Moreover, from the point of view of spreading the loss by insurance, it may well be that the most appropriate person to bear the loss is the householder. There is no difficulty in insuring against such liabilities by means of a householder’s comprehensive insurance policy ... .⁸⁷

3.47 Fleming takes the contrary view, saying that as the contractor will be liable to third parties, and as the principal would be entitled to an indemnity from the contractor, vicarious liability in effect calls upon the principal to guarantee the contractor’s ability to meet the claim. This, he says, “is apt to bear harshly on individuals who, like many a home owner, are both uninsured and unable to pass on the cost”.⁸⁸ This is another aspect of the law of support worthy of consideration, and possibly in need of clarification.

FOOTNOTES

1. P H Winfield “Nuisance as a Tort” (1931) 4 Cambridge Law Journal 189 at 190.

2. F H Newark “The Boundaries of Nuisance” (1949) 65 Law Quarterly Review 480 at 480.

3. Brand v Hammersmith & City Ry Co (1867) LR 2 QB 223 at 247 per Erle CJ.

4. C Gearty “The Place of Private Nuisance in a Modern Law of Torts” (1989) 48 Cambridge Law Journal 214 at 215.

5. J G Fleming The Law of Torts (8th ed, Law Book Co, Sydney, 1992) at 409.

6. B Bilson The Canadian Law of Nuisance (Butterworths, Toronto, 1991) at 1.

7. Dalton v Henry Angus & Co (1881) 6 App Cas 740 at 791; Fennell v Robson Excavations Pty Ltd [1977] 2 NSWLR 486 at 493; Pantalone v Alaouie (1989) 18 NSWLR 119 at 129.

8. P H Winfield (1926) 42 Law Quarterly Review 37.

9. Winfield (1926) at 37-38.

10. C H S Fifoot History and Sources of the Common Law (Stevens & Sons, London, 1949) at 187 and 194.

11. John G Fleming The Law of Torts (8th ed, Law Book Co, Sydney, 1992) at 427.

12. [1967] 1 AC 617.

13. [1967] 1 AC 617 at 640.

14. R W M Dias “Trouble on Oiled Waters: Problems of The Wagon Mound (No 2) “ (1967) 25 Cambridge Law Journal 62 at 80.

15. S Stoljar “Concerning strict liability”, paper presented at the Australian National University Tort Seminar (Canberra, May 1988) at 13.

16. R W M Dias at 81.

17. England and Wales, Law Commission Civil Liability for Dangerous Things and Activities (Report 32, 1970) at 24-26.

18. Fleming at 428.

19. Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 556.

20. [1994] 2 AC 264.

21. [1994] 2 AC 264 at 299-300.

22. [1977] 2 NSWLR 486.

23. [1977] 2 NSWLR 486 at 489, per Glass JA.

24. [1977] 2 NSWLR 486 at 491, 493 and 494.

25. [1977] 2 NSWLR 486 at 501, per Mahoney JA.

26. [1977] 2 NSWLR 486 at 493. References have been omitted.

27. [1977] 2 NSWLR 486 at 492, per Glass JA.

28. Stoljar at 2.

29. [1979] 2 NZLR 208.

30. [1979] 2 NZLR 208 at 212.

31. A J Bradbrook and M A Neave Easements and Restrictive Covenants in Australia (Butterworths, Sydney, 1981) at 136.

32. at paras 2.9-2.11.

33. (1968) 69 SR (NSW) 444.

34. (1968) 69 SR (NSW) 444 at 448.

35. (1987) 9 NSWLR 738.

36. (1989) 18 NSWLR 119 at 131.

37. Local Government Act 1993 (NSW) ss 627, 673 and 674.

38. Dalton v Henry Angus & Co (1881) 6 App Cas 740 at 804, per Lord Penzance.

39. (1881) 6 App Cas 740 at 792, per Lord Selborne.

40. (1975) 133 CLR 550 at 567. See also LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1988) 4 BPR 9640; Pantelone v Alouie (1989) 18 NSWLR 119.

41. [1972] NZLR 741.

42. [1972] NZLR 741 at 757. References have been omitted.

43. Stoneman v Lyons (1975) 133 CLR 550 at 567.

44. (1989) 18 NSWLR 119.

45. (1989) 18 NSWLR 119 at 129.

46 [1977] 2 NSWLR 486.

47 discussed at para 2.9.

48. (1989) 18 NSWLR 119 at 134-136.

49. (1989) 18 NSWLR 119 at 135-136.

50. [1979] 2 NZLR 208.

51. [1979] 2 NZLR 208 at 214. With respect to Richardson J’s comments regarding the expansion of negligence to take into account subsequent purchasers, see Bryan v Maloney (1995) 182 CLR 609 (HC).

52. R A Buckley The Law of Nuisance (Butterworths, London, 1981) at 3.

53. [1932] AC 562 at 580.

54. Buckley at 3.

55. C Gearty “The Place of Private Nuisance in a Modern Law of Torts” (1989) 48 Cambridge Law Journal 214 at 217 and 229; Buckley at 22.

56. A M Linden Canadian Tort Law (5th ed, Butterworths, Toronto, 1993) at 510.

57. Gearty at 218.

58. J G Fleming The Law of Torts (8th ed, Law Book Co, Sydney, 1992) at 409.

59. Linden at 505.

60. (1994) 179 CLR 520 at 541.

61. Fleming at 409-410.

62 [1997] 2 WLR 684.

63 [1997] 2 WLR 684 at 689, per Lord Goff of Chieveley.

64 [1997] 2 WLR 684 at 696, per Lord Goff of Chieveley.

65. Fleming at 366.

66. Halsbury’s Laws of Australia (Butterworths, Sydney, 1992) vol 10 at 310,522.

67. Halsbury’s Laws of Australia vol 10 at 310,525.

68. (1876) 1 QBD 321.

69. (1876) 1 QBD 321 at 326-327.

70. P S Atiyah Vicarious Liability in the Law of Torts (Butterworths, London, 1967) at 355-56.

71. The Times (23 December 1991).

72. The Times (23 December 1991) at 22.

73. (1940) 62 CLR 637.

74. (1940) 62 CLR 637 at 646, per Latham CJ.

75. (1940) 62 CLR 637 at 648.

76. (1975) 133 CLR 550 at 563 and 575.

77. (1986) 160 CLR 16.

78. (1986) 160 CLR 16 at 30.

79. (1994) 179 CLR 520.

80. (1984) 154 CLR 672.

81. (1994) 179 CLR 520 at 550-551.

82. (1994) 179 CLR 520 at 551 and 557 (emphasis added).

83. (1881) 6 App Cas 740 at 829.

84. (1984) 154 CLR 672 at 682.

85. (1984) 154 CLR 672 at 685.

86. (1984) 154 CLR 672 at 687.

87. Atiyah at 357.

88. Fleming at 390.