Section 4
Interference with highways
4.2: Nuisance and negligence
P.R. Ghandhi, M.A., LL.M., Senior Lecturer in Law, University of Reading
The law relating to animals on the highway is a complex amalgam of common law and
statutory provisions. The emergence of the application of the law of negligence, with its
inherent flexibility, has allowed the courts to reach pragmatic conclusions, particularly
appropriate to the widely diverse problems caused by animals on the highway.
Michael Orlik, Partner, Dibb Lupton Alsop, Solicitors
Case Note
Appeal by way of case stated was dismissed, the Divisional Court agreeing with the
magistrates that the creation of fear did not amount to an obstruction of the highway and
that the protrusion of the rottweilers' heads over the fence was a matter of inches and
was de minimis.
Professor Emeritus Keith Davies, J.P., M.A., LL.M., Barrister, Hon.Assoc.R.I.C.S.
A case note
If a state of affairs comes into existence on land such that it causes either harm or
discomfort or both (as a matter of fact and degree) to owners or rightful users of
adjacent land, that will potentially give rise to liability on the landowner's part in the
tort of nuisance (private or public). This is so even though he has not by any default
created the nuisance, provided that he has failed to take remedial action within a
reasonable time after he knew or ought to have known of that state of affairs. This
includes (among other things) nuisance caused by living creatures, e.g. pigeons.
Professor Emeritus Keith Davies, J.P., M.A., LL.M., Barrister, Hon.Assoc.R.I.C.S.
A case note on Bybrook Barn Garden Centre Limited and others v. Kent County Council
A drainage culvert constructed under an adopted highway is part of the highway land and
vested in the highway authority. If the culvert becomes inadequate to cope with increased
water flow and the authority fails to take reasonable remedial action to prevent any
resulting flood damage to the land of neighbouring owners, the authority as owner of the
highway land will be liable to them in the tort of nuisance.
Professor Emeritus Keith Davies, J.P., M.A., LL.M., Barrister, Hon.Assoc.R.I.C.S.
A case note
Public nuisance in relation to rights of way has acquired a sharper focus after the Court
of Appeal's decision in Wandsworth London Borough Council v. Railtrack plc., upholding
Gibbs J.'s decision at first instance. Feral pigeons roosting on the underside of the
Balham High Road railway bridge have for some years fouled the highway beneath it, in
particular the footway. Although Railtrack plc. repudiate responsibility, it was found on
the facts that they could clearly have tackled the problem but failed to do so. Wandsworth
Council have the power to do so, but at the public cost; this would be unjust if, as the
Court of Appeal held, Railtrack plc. are in any case liable as owners of the bridge. The
scale of the problem is not `de minimis', therefore it amounts to a nuisance. It is a
public nuisance because it affects the public right of way and countless members of the
public suffer. Railtrack plc. has had not merely ample warning of the nuisance (even
though not the originator of it) but in addition ample time to take curative action. An
injunction, or in this case a declaration, affords an appropriate remedy in public law to
the Council which, as owners of the highway, may also claim damages in private law.
Jennifer James, Senior Lecturer in Law, University of Reading
Where an animal causes an incident on the highway, the person legally responsible for
that animal may incur liability under the general law of tort, particularly the tort of
negligence, or by virtue of the specific provision applicable only to animals found in the
Animals Act 1971, for any damage which occurs. These two bases of liability for damage
caused by an animal on the highway are examined in the light of the decision of the Court
of Appeal in Mirvahedy v. Henley.
Professor Emeritus Keith Davies, J.P., M.A., LL.M., Barrister, Hon.Assoc.R.I.C.S.
A case note
Water-mains, pipes, cables and sewers are often placed in public, or private, rights of
way. From time to time a utility body which owns such apparatus has tried to evade the
normal liability arising, in the tort of nuisance, for harm to others emanating from the
apparatus, by stressing the allegedly excessive cost of carrying out improvements. Only
public utilities have succeeded in this.
In Marcic v. Thames Water Utilities Ltd. the Court of Appeal expressed the view that where
appropriate remedial work is too costly then at least there must be redress in the form of
damages to compensate the claimant. In Marcic flood water plus sewage erupted into the
claimant’s frontage property from the defendants’ overloaded sewers. The defence
arguments based on the fact that (a) all sewers benefit the public, and (b) the defendants
merely did nothing as distinct from acting wrongfully, were rejected. The public benefit
must be paid for by setting utility budgets at a level high enough to cover the liability
to compensate victims. Principles of nuisance at common law and the Human Rights Act 1998
alike point to this.
Mike Harwood, B.A., LL.B (Cantab), Solicitor
A commentary on the Animals Act 1971 and the House of Lords decision in Mirvahedy v.
Henley.
Professor Emeritus Keith Davies, J.P., M.A., LL.M., Barrister, Hon.Assoc.R.I.C.S.
A case note: Flooding from sewers in a highway
The House of Lords, reversing the Court of Appeal, has now held that sewerage authorities
are not liable to actions for damages in private nuisance for harm to properties which
adjoin the highway when sewers in the highway become overloaded, erupt and flood those
properties.
Karen Jones, Chief Legal Adviser, Country Land and Business Association
Livestock rarely escape onto roads but when they do the consequences can be serious.
This article discusses the farmer’s liability in such cases, focusing on two recent
decisions by the Court of Appeal and the House of Lords. The article further discusses the
implications of these decisions for the keepers of livestock on land opened up for the new
right of public access under Part 1 of the Countryside and Rights of Way Act 2000 and
highlights the need for highway authorities and access authorities to take a realistic
approach in authorising barriers across rights of way and in installing means of access on
access land.
David Burnet B.A.(Oxon), LL.M.(Wales), Lecturer, Cardiff Law School
In Bowlt v. Clark the Court of Appeal had the unenviable but not inherently difficult
task of applying to a road accident involving a horse the principles enunciated by the
majority in the House of Lords in Mirvahedy v. Henley.
Raymond Duddy, B.A. (Oxon)
A Case Note
A case in which the Court of Appeal upheld the trial judge’s rejection of strict
liability under the Animals Act 1971 where a cow had escaped on to a main road.
Fred Harrison-James, B.A.(Oxon), Solicitor,
Associate, Burges Salmon
A Case Note
A county court decision illustrates the liability of a farmer to someone injured by cattle
with calves while on or near a public footpath. The current law derives from a mixture of
common law, Occupier’s Liability Acts 1957 and 1984 and the Animals Act 1971 and has
been the subject of a proposed Parliamentary amendment.
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