THE MEASURED DUTY OF CARE
The Leakey Duty
Summary of this section
A duty to take reasonable steps to prevent, or to bring an end to, the cause of physical damage to neighbouring property – a ‘measured’ duty because the landowner has not brought about the hazard in question – the obligation arises because the landowner is in a position uniquely to protect its neighbour – nuisance and negligence combined – landowners and trespassers – ‘natural’ nuisances – the scope of the measured duty of care – a cautious approach – future applications
The ‘measured duty of care’ is a duty to take such steps as are reasonable to prevent or minimise the risk of physical damage occurring to another occupier of land. It is a ‘measured duty of care’ in recognition of the fact that the damage has not been brought about directly by the landowner. Liability arises because the landowner is in a position to remove a hazard which will give rise to the injury, if it is not abated. This may be, for instance, some danger left on the land by a trespasser (such a blockage to a drain), or the consequence of some natural event (such as a tree which has caught fire after having been struck by lightning).
A series of cases from 1940 (Sedleigh-Denfield, 1940; Goldman, 1967; Leakey, 1980) established the existence of this duty (and in so-doing aligned the law of private nuisance with public nuisance). Whilst it may seem surprising today, the recognition of a positive duty of this nature on the part of a landowner was new in 1940. Previously, a landowner had no obligation to take steps to prevent or abate a hazard from causing a nuisance to its neighbour. After all, the landowner had not caused either the hazard or the nuisance.
This outcome was achieved by recognising the existence of a duty of care in negligence ancillary to the claim in nuisance. In the form in which the obligation was first established, it was necessary to show that the landowner had either ‘continued’ or ‘adopted’ a nuisance occurring on its land. The continuance or adoption of a nuisance is no longer clearly a prerequisite of a claim in private nuisance. A breach of the measured duty of care is a means of ensuring that a landowner does not fail to act. There is no longer a strict demarcation between nuisance and negligence. In some cases the law of negligence has taken over.
In this section, more will be said about three landmark cases which defined this type of nuisance. Its wider ambit today will be examined as well as its scope. It has had a variety of applications, and its principles are still being worked out.
The measured duty of care and its development (i) trespassers
It is easier to understand this type of case once its development since 1940 has been explained.
The existence of the measured duty of care was first acknowledged in respect of a nuisance on land caused by a trespasser (Sedleigh-Denfield, 1940). In that case, a local authority had trespassed on to the defendant Mill Hill Fathers’ land at the top of a hill. The authority had done so in order to put a drainage pipe in place to divert rainwater. This would stop the authority’s flats from flooding at the bottom of the hill. However, the cover at the top of the drain was badly laid. It became blocked and a flood affected the claimant’s private house. At the time of the flooding, there was no legal right to sue a defendant from whose land flood water (or indeed any other hazard) occurred, should it be the case that a trespasser was responsible. After all, the defendant landowner had done nothing wrong. The party likely to be affected only had a right to go on to its neighbour’s land in order to prevent the nuisance.
The House of Lords found for the claimant. They did so by accepting the wider principle which has been stated by a judge in a dissenting judgment in an earlier case, which had subsequently gained academic support (Scrutton LJ in Job-Edwards, 1923). That judge had said that: “a landowner who fails to abate a nuisance within a reasonable time after it has come or ought to have come to his knowledge, or who fails to take reasonable means to remove from his land an artificial danger which he knows will damage other persons if allowed to remain, may be responsible for resulting damage”.
That remains the central element of the principle to this day. However, the House of Lords also decided that it was necessary to show that the landowner had ‘continued’ or ‘adopted’ the nuisance. An occupier of land ‘continues’ a nuisance if, with knowledge or presumed knowledge of its existence, it fails to take reasonable means to bring it to an end when it has ample time to do so. It ‘adopts’ it if it makes any use of the erection or artificial structure which constitutes the hazard and therefore the nuisance.
In the Mill Hill Fathers’ case, the defendants had discovered the existence of the pipe. They then used the pipe to drain their own fields. One year they failed to look after the grating on the opening of the pipe and flooding occurred. In other words they had both continued and adopted the nuisance.
As to liability for the anti-social acts of trespassers and licensees, see also Page Motors (1981), Hussain (1998) and Lippiatt (1999). With differing degrees of success, attempts have been made to obtain compensation from landowners who might have been in a position to remove individuals who have perpetrated anti-social acts which have caused injury to neighbouring landowners.
The measured duty of care and its development (ii) natural events
The ‘measured duty of care’ to take reasonable steps to prevent or minimise the risk of physical damage was subsequently developed beyond those cases where trespassers had caused damage. It came to be used to provide a claimant with a means of obtaining a remedy where the risk of damage has occurred by reason of natural events.
In Goldman (1966), set in Western Australia, a redgum tree was struck by lightning and caught fire on the defendant’s land. As was the practice in the area, the defendant felled the tree so that it would burn itself out. Three days later a gust of wind picked up an ember and it set fire to the claimant’s nearby home.
The Privy Council held that an occupier of land was under a general duty of care, in relation to hazards occurring on its land, to remove or reduce the risk of such hazards to its neighbour. This was the case whether the hazard was natural or man-made. The existence of this duty had to be based on knowledge of the hazard, the ability to foresee the consequences of not checking or removing it, and the ability to abate it. The standard of care required of the occupier was founded on what it was reasonable to expect of the landowner given its circumstances. The Privy Council decided that the defendant should have put the fire out with water. The claimant succeeded.
In England & Wales, this principle was re-stated in Leakey (1979). In that case the National Trust had been warned that bits of a mound known as Barrow Mump, being unstable, had fallen from time-to-time on to neighbouring houses. The National Trust failed to do anything to stop this from happening despite the warning. It was held liable when further damage was caused. The National Trust had allowed the nuisance to continue, in breach of its measured duty of care.
The measured duty of care is now sometimes known as the ‘Leakey duty’.
The measured duty of care and its wider ambit
By the time of Leakey, 1980, the measured duty of care had become a duty to take such steps as are reasonable to keep the occupier’s neighbour safe.
The measured duty of care can only arise after the defendant occupier has knowledge of the hazard giving rise to a foreseeable risk of injury. In other words the risk must be ‘patent’ and not ‘latent’. The requirement of “knowledge” encapsulates the original requirement that the defendant landowner must have continued or adopted the hazard. Cases today appear only to require that there was a foreseeable risk of damage.
It matters little to the court whether the claim is pleaded either in negligence or in nuisance. By making the claim in nuisance, however, it is perhaps more likely that a cautious approach to the scope of the duty will be preserved. This was originally intended, after all, to be a ‘measured’ duty of care with a restricted scope (see further below).
The scope of the duty
A cautious approach was originally applied by the courts to the assessment of the scope of this duty of care, in recognition of the fact that the defendant has not caused or brought about the nuisance in the first place. The cause of action applies where there has been an omission to act. That there should be a liability for an omission to act, is not as clear-cut as cases where a defendant has itself brought about some damage.
Thus it was said in Goldman (1966) that “the law must take account of the fact that the occupier on whom the duty is cast has had this hazard thrust upon him through no seeking or fault of his own”. This means that the landowner’s resources have to be taken into account, both in relation to the magnitude of the hazard, or as compared with those of the neighbour under threat. Whilst a landowner has to take reasonable steps to abate a nuisance, what is reasonable to one man could be the ruin of another. Therefore the law will not expect some physical effort of which the defendant landowner was incapable, or the expenditure of an excessive amount of money. Detailed evidence of the competing resources of the parties is not required. The court will take a view in the round without relying on detailed accountancy or other such evidence.
A number of these cases have concerned local authorities and claims that they owed a landowner a measured duty of care. The courts have generally been sympathetic to local authorities in this context.
In Holbeck Hall (2010) it was said that the scope of the duty may be limited to warning neighbours about the hazards and to sharing such information as the defendant may have acquired. It was too much to have expected the local authority to have shored up a cliff face in order to prevent a hotel from falling into the sea.
In Lambert (2010) the Court of Appeal decided that removing the risk of flooding from the local authority’s land would have required considerable cost. The scope of the local authority’s duty was only to have allowed the neighbouring property owner access to its land to construct a catch pit. It could also have been expected to provide reasonable assistance in assisting the owner to obtain any necessary consents. The Court of Appeal decided that it was a “powerful factor” that the claimant had a full right of recovery against the (additional) developer defendant, refusing to find it fair, just and reasonable that a measured duty of care should be imposed on the local authority.
In Vernon Knight (2003) a local authority was held to have been subject to a measured duty of care, but the extent of the duty was only a duty to cooperate in facilitating suitable drainage facilities.
Relevant considerations in each case are the extent of the risk, the nature of the damage which might be caused, the practicability of taking steps, how simple, difficult or expensive those steps might be, whether there was time to take the necessary steps, whether or not the defendant could conveniently have abated the nuisance without recourse to the claimant, and so on.
The courts have been cautious to find local authorities liable under the measured duty of care. These are very fact-sensitive cases.
Future applications of the measured duty of care
It is fair to say that the application of the Leakey duty of care is still being worked out. Indeed, in new sets of circumstances a court will ask whether it is fair, just and reasonable to impose a duty on the defendant, applying the test of negligence set out in Caparo Industries plc (Lambert, 2010). In other words, negligence may have taken over in some of these cases. This leaves it questionable to what extent limitations will still be attached to the scope of the defendant’s duty to act.
Bybrook (2000) used the principle of the measured duty of care in a different context from those considered elsewhere in this section. The court was not concerned with some entirely new state of affairs unconnected with the defendant’s conduct. It concerned the acts of a highway authority which had originally designed a culvert to drain water away so that it would not cause flooding. The problem was that new residential developments in the area had imposed increasing burdens on the culvert. It could no longer carry away the water it needed to carry away to avoid the risk of flooding locally. The Court of Appeal decided that the County Council had a duty to make sure that a culverted stream did not put local businesses at an increased risk of flooding. This was a new application of the measured duty of care.