Sedleigh-Denfield v O’Callaghan [1940] AC 880

Key point

  • An occupier is liable if he continues adopts the nuisance created by a third party

Facts

  • D’s land was a ditch, in which a trespasser (the local council) laid a pipe with an ill-placed grating designed to keep out leaves
  • During a heavy thunderstorm, an accumulation of leaves at the grating blocked the pipe and caused C’s land to be flooded
  • For nearly three years before the flooding, D’s servant was responsible for clearing the ditch and was aware of the risk of flooding

Issue

  • Was D liable for the flooding despite not laying the pipe and grating that caused it?

Held (House of Lords)

  • D is liable for continuing and adopting the nuisance

Viscount Maugham

Liability of occupiers for omissions

  • An occupier is liable if he continues adopts the nuisance created by a third party: p. 894 – 895
  • An occupier of land “continues” a nuisance if, with knowledge or presumed knowledge of its existence, he fails to take reasonable means to bring it to an end when he has ample time to do so
  • An occupier “adopts” a nuisance if he makes any use of the erection, building, bank or artificial structure which constitutes the nuisance

Current case

  • D continued the nuisance as he neglected to place the grating at the proper place
  • D also adopted the nuisance as he continued to rely on the pipe to get rid of the water from the ditch without taking the proper means to render it safe

Lord Atkin

  • Through their servant, D must be taken to have had knowledge of the erection of the unguarded pipe on their land and the risk of obstruction: p. 896
  • D clearly continued the nuisance as they knew the danger, they were able to prevent it and they omitted to prevent it: p. 899B

Commentary

  • This case creates an exception to the standard of strict liability in nuisance in cases involving a failure to remove a nuisance (i.e. continuing the nuisance) – in such cases fault/negligence is required