In Esso Petroleum v Southport Corporation a tanker owned by Esso ran aground in the Liverpool estuary and in order to stop the ship breaking up, which would have endangered the lives of the crew, the captain ordered the discharge of all the oil she was carrying. This oil ended up on Southport beach, causing serious pollution, and the Corporation spent much money in clearing up the mess. In an action for damages based on trespass, public and private nuisance and negligence of the captain (on which see Chapters 12–13), the Corporation hoped to recoup its losses from Esso. However, the trial judge,126in a decision ultimately supported in the House of Lords,127found that the captain had not been negligent in discharging the oil. For, ‘if one seeks an analogy from traffic on land, it is well established that persons whose property adjoins the highway cannot complain of damage done by persons using the highway unless it is done negligently’.128The action for damages thus failed.
Now, from a strictly common law point of view, this decision has its own logic, as the approach of Denning LJ, who, as we shall see, supported the plaintiffs’ claim, in the Court of Appeal clearly indicates. In order to determine if there is liability, one goes through the various causes of action one after another to see if they fit the facts and, if just one does, then, provided that the defendants cannot avail themselves of
126 [1953] 3 WLR 773. 127 [1956] AC 218.
a defence, there will be liability.129 Accordingly Denning LJ first discusses trespass to land, concluding that it does not lie since the damage was not caused directly by Esso; it was the wind that carried the oil towards Southport. He then moves on to private and to public nuisance holding that private nuisance did not lie because ‘it did not involve the use by the defendants of any land, but only of a ship at sea’.130However, it was in his opinion a public nuisance to discharge oil into the sea in such circumstances that it was likely to be carried on to the beaches to the prejudice and discomfort of Her Majesty’s subjects. It was an offence punishable by the common law and should any person suffer greater damage or inconvenience from the oil than the generality of the public, such a person will have an action to recover damages. Comparing nuisance with negligence, Denning LJ said that one of the principal differences was the burden of proof. Once a public nuisance is proved and the defendant is shown to have caused it, then the legal burden is shifted on to the defendant to justify or excuse himself and, if he fails to do so, he is held liable. In an action for negligence, on the other hand, the legal burden in most cases remains throughout on the claimant and, although the judge may gain much help from provisional presumptions like the doctrine of res ipsa loquitur, he must ask himself whether the legal burden is discharged. If the matter is left evenly in the balance in a negligence case, the claimant fails.
What is interesting from a legal method point of view about Denning LJ’s use of public nuisance is how he uses the tort to expand the facts so to speak. In public nuisance, said the appeal judge, the legal burden shifts to the defendant, and it is not sufficient for him to leave the matter in doubt; he must plead and prove a sufficient justification or excuse. And he continued:
The defendants seek to justify themselves by saying that it was necessary for them to discharge the oil because their ship was in danger. She had been driven by rough seas on to the revetment wall, and it was necessary to discharge the oil in order to get her off. If she had not done so, lives might have been lost. This is, no doubt, true at that stage in the story, but the question is, how came she to get upon the wall? If it was her own fault, then her justification fails, because no one can avail himself of a necessity produced by his own default. Where does the legal burden rest in this respect? Must the Southport Corporation prove that the ship was at fault in getting on to the wall, or must the ship prove that she herself was not at fault? In my opinion the burden is on the ship. She does not justify herself in law by necessity alone, but only
129 [1954] 2 QB 182, p 195. 130 Ibid, p 196.
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by unavoidable necessity, and the burden is on her to show it was unavoidable.131
What public nuisance has allowed the court to do here is to expand the facts so as to include not just the accident itself but the whole relationship between Esso and ship. The image here is not one of a dispute between two legal subjects involved in an accident;. it is the much wider picture of a bond between persona (owner) and res (ship). This adds a whole new dimension to the facts since, as Denning LJ indicates, one does not look just at the act of discharging the oil, but at the whole activity of putting to sea a ship carrying a cargo capable of causing damage if it escapes. It is not so much a question of applying different rules as such, although the tort of public nuisance is different from the tort of negligence; it is a question of changing the dimension of the facts which in turn reveals a quite different image. It is no longer a question of an analogy with the act of driving a car.
In the House of Lords,132the only way to restore the original image of the traffic accident was through the law of procedure. Consequently, the plaintiffs were refused permission to plead a further cause of action based on the breach of a direct duty between Esso and Southport Corporation in respect of putting to sea an unseaworthy ship. According to Lord Radcliffe the case had to be decided in accordance with the pleadings since the defendants were entitled to conduct the case and confine their evidence in reliance upon the particulars of the statement of claim which had been delivered by the plaintiffs. Such particulars, he continued, help to define the issues and to indicate to the party who asks for them how much of the range of his possible evidence will be relevant and how much irrelevant to those issues. And if an appellate court was to treat reliance upon them as pedantry or mere formalism, then Lord Radcliffe could not see what part they have to play in the English trial system.133 In the House of Lords the Law Lords, accordingly, contracted the facts by refusing to allow the plaintiffs to claim that Esso might owe a direct duty to Southport in respect of the control of its ship. As far as the Law Lords were concerned this was simply a case about the acts of an employee of the defendants.
This ability to expand and contract factual situations is often central to the English law of obligations and indicates just how important it is for the common lawyer to be able to handle facts. Of course, one could analyse Denning LJ’s approach by reference to a rule about liability for
131 [1954] 2 QB 182, pp 197–98. 132 [1956] AC 218.
133 Lord Radcliffe’s views have been quoted with approval recently: Barclays Bank
things: one is liable not only for damage caused by one’s own act but also for damage caused by a thing under one’s control.134Yet this was
not the way the Court of Appeal approached the question of liability. The court did not abandon fault as such. What Denning LJ did was to decide the question of ‘fault’ through the manipulation of the causes of action and the rules of procedure so as to arrive, through a discussion of the facts themselves, at a similar conclusion as if one had applied, for example, Art 1384 of the Code civil. Comparison with the civil law thus becomes possible even although a case like Esso v Southport uses notions such as trespass and nuisance which are completely alien to a civil lawyer. But such comparisons must be treated with great caution since English law is not operating through unstated abstract principles about liability for damage caused by a thing; it is in truth functioning through the comparison of images. The trial judge thus compared the accident at sea with the image of a road accident, while Denning LJ pushed the facts backward from the accident itself to an image of a heavily laden ship operating in rough seas. Even the House of Lords created an image of a hard-pressed defendant coming to court only to find that there is some ‘new’ allegation for which he is unprepared. One is, in other words, ‘creating’ rules out of different kinds of images, and this is why the facts of cases are always as important – perhaps more important – than any apparent principle to be found in the decision.
Indeed the whole idea of a decision, even of the House of Lords, standing as authority for some rule or principle independent of the material facts of the case has little meaning in the English common law. In Spring v Guardian Assurance plc,135where the House of Lords decided that a former employee financially damaged by a reference carelessly prepared by his former employer was entitled to sue for damages in the tort of negligence (cf Chapter 12 § 7(c)), Lord Woolf finished his speech with the following warning:
It only remains for me to underline what I anticipate is already clear, that is, that the views which I have expressed are confined to the class of case with which I am now dealing. Some of the statements I have made I appreciate could be applied to analogous situations. However, I do not intend to express any view either way as to what will be the position in those analogous situations. I believe that they are better decided when, and if, a particular case comes before the court. This approach can lead to uncertainty which is undesirable. However, that undesirable consequence is in my view preferable to trying to anticipate the position in relation to other situations which are not the subject matter of this appeal ...136
134 CC, Art 1384. 135 [1995] 2 AC 296. 136 Ibid, p 354.
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