?Personal injury damages have no place within the tort of nuisance': A critical analysis of the validity of Professor Newark's assumption
| Author | Bekki Flood |
| Pages | 27-34 |
S.S.L.R. ‘Personal injury damages have no place within the tort of
nuisance’: A critical analysis
27
Vol.2
‘Personal injury damages have no place within the
tort of nuisance’: A critical analysis of the validity of
Professor Newark’s assumption
Bekki Flood
There is a belief that personal injury damages should be recoverable within
the tort of nuisance. However, Professor Newark emphatically rejects this. By
considering the two key questions of who can sue and what is actionable, and
analysing the way in which both the academics and the judiciary have
approached the normative question as to whether PI damages should be
recoverable in nuisance law, this article will assess the validity of Newark’s
rejection. This article argues that Newark was correct in his submission with
regard to private nuisance, but in his search for a categorised system of law
erred in his assumption that both private and public law protect the same
interests, and thus was incorrect with regard to public nuisance. The article
further argues that until the judges truly ask the question of whether PI
damages should be recoverable and thereby balance the interests of the
parties, certainty has won the battle against justice.
Introduction
he question of ‘What is nuisance?’ is immersed in undefined certainty.
1
The prime cause of this, according to Professor Newark, is that the
boundaries of the tort are blurred. The aim of Newark’s article is to
show how many of our present troubles concerning nuisance are due to an
improper extension of the term 2 and ultimately, that personal injury
(hereafter PI) damages have no place within the tort.
In order to critically discuss Newark’s seminal statement, it is first necessary to
expose its hidden internal assumption, that nuisance is a tort of land and not
of the person. The validity of this assumption will be analysed by consideration
of two key questions: ‘Who can sue?’ and ‘What is actionable?’ Furthermore, it
will also be necessary to analyse the way in which both the academics and
judiciary have approached the normative question, ‘Should PI damages be
1 Erle C.J’s undelivered judgement in Brand v Hammersmith (1867) L .R 2 Q.B. 223, 247
2 Newark, ‘The Boundaries of Nuisance’ (1949) 65 LQR 480, 481
T
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