Law Publications
Title
Reconceptualising the Tort of Public Nuisance
Document Type
Article
Publication Date
2017
Volume
76
Issue
1
Journal
Cambridge Law Journal
First Page
87
URL with Digital Object Identifier
https://doi.org/10.1017/S0008197316000829
Last Page
115
Abstract
This article seeks to demonstrate three things. First, the orthodox conceptualisation of the tort of public nuisance is flawed, since: (1) it is in violation of basic private law principles related to privity and the actionability of crimes and (2) if taken seriously would mandate that the tort be abolished (as torts protect private not public rights). Second, the rights at the heart of the tort are the privately actionable rights to pass and repass on public highways and to fish in public waters, and that it is plausible that a sophisticated legal system would recognise such rights. Third, a tort reconceptualised in this way can make sense of: (1) the special damage rule that is generally thought arbitrary and (2) the general intuition that the recovery of damages for pure personal injuries is best left to other torts.
Citation of this paper:
JW Neyers, “Reconceptualising the Tort of Public Nuisance” [2017] Cambridge Law Journal 87-115.
