5 Otago L. Rev. 417 (1981-1984)
Means Test Liability: The Subjective Standard of Care in Nuisance

handle is hein.journals/otago5 and id is 428 raw text is: MEANS TEST LIABILITY:
THE SUBJECTIVE STANDARD OF CARE IN NUISANCE
VIVIENNE FEA*
To those who have viewed the merging of nuisance with negligence
with alarm, the decision in Leakey v National Trust for Places of
Historic Interest or Natural Beauty' must have represented yet another
nail in the coffin of that failing if not actually moribund patient,
nuisance. The confusion between negligence and nuisance is historical
and its origins have been canvassed before in the context of recovery of
damages for physical injury in nuisance.2 Not only does nuisance con-
tinue to be haunted by that particular phantom despite Professor
Newark's plea for a conclusive interment, but yet another has been resur-
rected in the shape of the imposition of the negligence concept of a
positive duty of care resting upon an occupier in respect of hazards on his
land.
Could it be that Lord Macmillan's observation in Donoghue v Steven-
son3 that the categories of negligence are never closed constituted a
tacit warning as early as 1932 that negligence was no respecter of doc-
trinal boundaries? Certainly Megaw LJ in Leakey seized upon the neigh-
bour principle as having a valuably literal application in the context of
occupier's liability, although the problems implicit in translating a negli-
gence duty of care into the confined ambit of nuisance do not appear to
have been considered. It is the writer's contention that the marriage of
convenience between nuisance and negligence, presided over by Wagon
Mound (No 2) and attended by Sedleigh-Denfield v O'Callaghan5 and
Goldman v Hargrave6 has resulted in the emergence of a highly
idiosyncratic offspring in the shape of Leakey and that the product of
this mesalliance may present some uncomfortable cross-doctrinal
problems.
The facts of Leakey were simple. The National Trust were owners and
occupiers of land, which included a large mound known as Burrow
Mump, the geological composition of which rendered it susceptible to
subsidence at intervals. Due to an unexpected climatic extreme, a very
dry summer followed by a wet autumn, the mound cracked and earth fell
on to the plaintiffs' land. The plaintiffs drew the defendants' attention to
this hazard, whereupon the defendants, with full confidence in the pro-
tection afforded by nuisance to occupiers innocent of creating, or
* MA, LLB, Lecturer in Law, Department of Accountancy, University of Auckland.
1 [19801 QB 485.
2 Newark, The Boundaries of Nuisance (1949) 65 LQR 480.
3 [1932] AC 562, 619.
4 Overseas Tankship (UK) Ltd v Miller Steamship Co Pty [1967] AC 617.
5 [1940] AC 880.
6 [1967] AC 645.

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