NUISANCE VS. CONTINUING NUISANCE
In the England and Wales Court of Appeal (“EWCA”) decision of Jalla & Ors v Shell International Trading and Shipping Company & Anor [2021] EWCA Civ 63 (“Jalla v Shell”), the EWCA dealt with the distinction between a cause of action for nuisance versus a cause of action for continuing nuisance.
Salient facts. In brief, in Jalla v Shell, the appellants (a group of 27,8000 individuals and 457 communities who live and work by or in the hinterland of a stretch of Nigerian coast) sued the respondents for an oil spill which caused oil to wash up onto the appellant’s land ([2] Jalla v Shell): the oil spill occurred on 20 December 2011, and the oil washed up onto the appellant’s land within weeks.
As such, the primary limitation period in both negligence and nuisance expired six years thereafter, sometime in early 2018 ([2] Jalla v Shell).
However, the claim was not commenced until after that time ([2] Jalla v Shell). The judge, finding that the spill gave rise to a “one-off claim in nuisance”, found that the claims could not be for continuing nuisance ([3] Jalla v Shell): this meant that for many of the appellants, their action were statute-barred as their action was commenced after the limitation period ([19] – [26] Jalla v Shell).
The issue on appeal. There was only a single issue on appeal in Jalla v Shell: did the appellants have a cause of action for continuing nuisance? ([27] Jalla v Shell). If so, it would defeat the limitation defence.
Recap on the law of nuisance. Coulson LJ (with whom Newey and Lewison LJJ agreed) first summarised the law on nuisance at [31] – [44] Jalla v Shell. In particular, Coulson LJ endorsed the general principles on the modern law of nuisance as set out by Sir Terence Etherton MR in Williams v Network Rail Infrastructure Limited [2018] EWCA Civ 1514:
“… These were, first, that a private nuisance was a violation of real property rights [40. Secondly, that although nuisance was sometimes broken down into different categories, those were merely examples of a violation of property rights [41]. He warned of the difficulties with rigid categorisation, because those would not easily accommodate possible examples of nuisance in new social conditions. Thirdly, he said that the proposition that damage was always an essential requirement of the cause of action of nuisance had to be treated with considerable caution [42]. He said that the concept of damage in this context "is a highly elastic one". He added that physical damage was not necessary to complete the cause of action [43]. Fourthly, he said that nuisance could be caused by inaction or omission as well as by some positive activity [44]. Finally, he said at [45] that the broad unifying principle in this area of the law was reasonableness between neighbours (real or figurative) and cited Delaware Mansions in support of that proposition.”
No continuing nuisance. Turning to the facts of the case, Coulson LJ agreed with the judge and found that Jalla v Shell was not a case of continuing nuisance ([51] Jalla v Shell):
1. Coulson LJ observed that “A cause of action in tort is usually a single, self-contained package of rights, relating to an act or omission which has caused damage and is actionable in law. Thus any claim in negligence in this case, arising out of the event when the oil leaked into the sea on 20 December 2011, gave rise to a single cause of action, which, as a matter of law, was completed when damage occurred.” ([52] Jalla v Shell).
2. Coulson LJ then observed that a continuing cause of action is “more unusual”, and cited Hull v Chard Union [1894] 1 Ch 293, where Lindley LJ described a continuing cause of action as “a cause of action which arises from the repetition of acts or omissions of the same kind as that for which the action was brought”.
3. The paradigm example cited by Coulson LJ is that of the tree-roots case in Delaware Mansions Ltd v Westminster City Council [2001] UKHL 55: “… The roots of a landowner's tree spread, and encroach under the neighbouring land. The roots begin to undermine the foundations of his neighbour's house. Until such time as the landowner cuts down or severely prunes back the tree in question, he is responsible for the continuing encroachment of the roots. The tree roots therefore comprise a continuing nuisance. The landowner's failure to abate the nuisance by dealing with the tree is a continuing one.”
4. In contrast, Coulson LJ found that in Jalla v Shell, there was no continuing acts or omissions, or a repetition of an original act or omission ([55] Jalla v Shell).
5. In doing so, Coulson LJ held that “… it is wrong in principle to equate nuisance with physical damage or harm. There is no authority which supports the contention that, in a case like this, there is a fresh cause of action every day that the oil remained on the land. It would be a radical departure from the case law to say that a continuing nuisance does not require a continuing event or hazard, but merely continuing harm after the single event has ended, or the hazard has been removed.” ([65] Jalla v Shell).
6. Coulson LJ also held that while nuisance continues until it is abated, “… abatement of the nuisance means dealing with the state of affairs that created the nuisance; it does not involve any obligation to remediate the damaged caused by the nuisance …” ([71] Jalla v Shell). However, Coulson LJ was careful to emphasize that this does not mean that the respondents were not liable in law for the consequences of the oil spill: “… Limitation and jurisdiction difficulties aside, if the appellants' case was well-founded, the respondents would be liable in damages, which might well include the cost of an effective clean-up operation. But they were not liable to carry out the clean-up themselves: that was beyond their control.” ([76] Jalla v Shell).
Nuisance vs. nuisance. For casual readers, perhaps the key takeaway from Jalla v Shell is a reminder that in law, nuisance does not bear the same meaning as the colloquial meaning of the word.
As Coulson LJ stated, “… oil in the water was plainly, at the very least, something which created numerous problems and difficulties. But that is nothing to do with when (and how often) the cause of action at common law …” ([64] Jalla v Shell).
Further, there is a difference in law between a “nuisance” vs a “continuing nuisance”, and it can be significant. This difference is particularly important when a potential claimant is considering whether to commence an action for the “nuisance“ close to the expiry of 6 years (or after the expiry of 6 years) from whence the nuisance first arose.
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