A nuisance that just won't go away..
The case of Harrison Jalla & Ors v (1) Shell International Trading and (2) Shell Nigeria Exploration  EWCA Civ 63.
The Court of Appeal has provided clarity on the issue of the end-point of a defendant’s liability in the tort of nuisance (Harrison Jalla & Ors v (1) Shell International Trading and (2) Shell Nigeria Exploration  EWCA Civ 63).
In December 2011, a serious environmental incident occurred when oil from a submerged supply line leaked into the sea for some five or six hours. The claimants, residents and workers along the Nigerian coast, alleged that the oil contaminated their land and adversely affected their lives and industries. The precise defendants to the claims and when the claims were issued against those defendants is beyond the scope of this article. Suffice to say, there was an issue as to whether the claims had been brought against the relevant defendants within the six-year limitation period. The question for the court was whether the oil spill gave rise to a one-off claim in nuisance or claims for continuing nuisance. The court confirmed it was the former.
In a complex case and judgment, the fundamental point was dealt with succinctly:
“A cause of action in tort is usually a single, self-contained package of rights, relating to an act or omission which has caused damage and is actionable in law. Thus any claim in negligence in this case, arising out of the event when the oil leaked into the sea on 20 December 2011, gave rise to a single cause of action, which, as a matter of law, was completed when damage occurred (our emphasis).”
By contrast, a continuing cause of action usually involved “a repetition of the acts or omissions which gave rise to the original cause of action”. In the context of a claim in nuisance, a continuing nuisance occurred where
the state of affairs that created the nuisance persists. Citing the example of tree-roots undermining the foundations of a neighbour’s house, the nuisance continues (either deliberately or though omission) until the owner abates it by taking the necessary remedial action with the tree.
In this case, the “single one-off event” was the leak in the pipe and it was abated by turning the pipeline off six hours after the problem became apparent. The cause of action crystallised when the damage occurred, i.e. when the oil hit the claimants’ land. However, the oil that remained on the claimants’ land thereafter was a consequence of that single event, not a continuing tort of nuisance.
This is an important judgment. The logical consequence of the claimants’ argument was that a continuing nuisance does not require a continuing event but merely continuing harm after the event has ended (or after the hazard has been removed). In the case of a defendant responsible for a one-off incident, this might mean the defendant being faced with litigation decades after the event such that “the provisions of the Limitation Act would be rendered ineffective” (paragraph 66). Such uncertainty and open-ended liability has been avoided.
Similarly, abatement of a nuisance does not require a defendant to “clean up the damage”. Rather, it means “dealing with the state of affairs that created the nuisance”. This is fundamental given the countless difficulties a defendant may potentially face in carrying out remedial work (e.g. identifying it and accessing third party land). Of course, this does not mean a defendant is not liable in damages for the costs of a clean-up operation, simply that it is not liable to carry out the clean-up itself.