Court of Appeal · Court of Appeal; Megaw LJ gave the leading judgment
Facts
The Leakeys owned houses at the foot of a hill that belonged to the National Trust. Following a period of weather changes, earth and debris slipped from the hill, and a larger mass of earth threatened to fall onto the houses. The Leakeys asked the Trust to remove the danger, but the Trust took the view that the hazard was natural and that it was not liable. The Leakeys sued, claiming that the Trust was in breach of a duty to abate a nuisance.
History
The trial judge found for the Leakeys and the National Trust appealed.
Issue
Whether an occupier of land is under a duty to a neighbour to prevent a hazard, which arises naturally on his land and not by his act, from causing damage, and if so the standard of that duty.
Held
Appeal dismissed. The Trust was under a duty to take reasonable steps to avert the danger, and it was liable for failing to do so.
Ratio
- An occupier of land owes a duty of care to a neighbour in respect of hazards on his land that arise from natural causes, once he knows or ought to know of the hazard and of the risk it poses to the neighbour's land.
- The duty is a measured duty, requiring only what is reasonable in all the circumstances, having regard to the occupier's knowledge, his resources and the extent of the risk, and it does not require him to do what he cannot afford or to take disproportionate steps.
The judgments
Megaw LJ (lead)
Held that the principle in Goldman v Hargrave, applied by the Privy Council to a fire started naturally, applies to all hazards arising naturally on the land, and that the duty is one of reasonable care which takes into account the particular circumstances and resources of the occupier.
Key reasoning
- It would be unjust to hold an occupier liable for a hazard he creates but not one which he sees developing and allows to develop, when he has the power to act.
- A duty framed in terms of reasonable care avoids imposing an unreasonable burden, since the expense and effort required are tempered by the means of the occupier and the neighbour's ability to protect himself.
- The Trust knew of the danger and had the resources to deal with it, and the danger was serious, so the failure to act was a breach of the duty.
Where it fits in the module
On the FHS question of who is liable in nuisance, Leakey identifies the occupier who allows a hazard to continue, alongside the creator of the nuisance and the landlord who authorises it. It builds on Sedleigh-Denfield v O'Callaghan [1940] AC 880, which covered adopting and continuing a nuisance created by a trespasser, and on Goldman v Hargrave [1967] 1 AC 645. The case is relevant to the relationship between nuisance and negligence, since a measured duty of care resembles negligence reasoning, and to its later application to landslips, which limited liability to damage that was foreseeable, as in Holbeck Hall Hotel Ltd v Scarborough BC [2000] QB 836. The tutorial question is whether nuisance by omission is a distinct strict liability tort or has been absorbed into negligence.
Criticisms
- The measured duty introduces subjective considerations, such as the occupier's resources, into a tort that was previously concerned with the effect on the neighbour, making liability depend on the wealth of the defendant.
- It blurs the distinction between nuisance and negligence, since liability depends on knowledge and reasonable response, which are matters of negligence.
- The decision places a positive burden on occupiers to act in relation to hazards they did not create, which is hard to reconcile with the general reluctance of the law to impose liability for omissions.
- The requirement that the neighbour contribute where the occupier lacks means is left unclear, so the practical operation of the duty is uncertain.
Written with AI (claude-sonnet-5.5 (Claude Code writer)) on 1 November 2026, reviewed for errors by a second model (claude-sonnet-5.5 (Claude Code checker)). Read the case itself at [1980] 1 QB 485. Spotted an error? Tell us.