The court distinguished between obstructions of a highway and dangers created on it. Lord Denning MR asked: ‘How are we to determine whether a state of affairs in or near a highway is a danger?’ and answered ‘This depends, I think, on whether injury may reasonably be foreseen. If you take all the cases in the book, you will – find that if the state of affairs is such that injury may reasonably be anticipated by persons using the highway it is a public nuisance …. But if the possibility of injury is so remote that the reasonable man would dismiss it out of hand, saying ‘Of course, it is possible, but not in the least probable’, then it is not a danger.’
He went on to say: ‘Inasmuch as the test of danger is what may reasonably be foreseen, it is apparent that cases of public nuisance . . have an affinity with negligence.’ Nevertheless: ‘There is a real distinction between negligence and nuisance. In an action for private damage arising out of a public nuisance, the court does not look at the conduct of the defendant and ask whether he was negligent. It looks at the actual state of affairs as it exists in or adjoining the highway, without regard to the merits or demerits of the defendant. If the state of affairs is such as to be a danger to persons using the highway . . it is a public nuisance. Once it is held to be a danger, the person who created it is liable unless he can show sufficient justification or excuse.’
Judges:
Lord Denning MR
Citations:
Unreported, 31/01/1956
Jurisdiction:
England and Wales
Cited by:
Cited – Dymond v Pearce CA 13-Jan-1972
A motorcyclist crashed into the rear of a lorry stationary on the carriageway. The plaintff said that the parking of the lorry was a nuisance, and that if it had not been so parked, there would have been no accident.
Held: The appeal failed. . .
Lists of cited by and citing cases may be incomplete.
Nuisance, Road Traffic
Updated: 08 April 2022; Ref: scu.265962