Law Publications

Title

Reconceptualising the Tort of Public Nuisance

Document Type

Article

Publication Date

2017

Journal

Cambridge Law Journal

Volume

76

Issue

1

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.

Find in your library

Share

COinS