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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Dymond v Pearce & Ors [1972] EWCA Civ 7 (13 January 1972) URL: http://www.bailii.org/ew/cases/EWCA/Civ/1972/7.html Cite as: [1972] EWCA Civ 7, [1972] 1 All ER 1142, [1972] 1 QB 496, [1972] 2 WLR 633, [1972] RTR 169, [1972] QB 496

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL.
(On appeal from decision of Mr. Justice Bridge at Exeter, 25th June, 1971.)

		Royal Courts of Justice,
		13th January. 1972.

LORD JUSTICE SACHS: This is an appeal from a judgment of Mr. Justice Bridge given at Exeter Assizes on the 25th June last year. It is now reported In 1971 Road Traffic Reports at page 472. On that occasion there came before the learned Judge the claim of a pillion riding passenger on a motor cycle. The driver of that motor cycle had in Wolseley Road, Plymouth, driven it into the back of a large stationary lorry at about 9.45 p.m. on the 26th August, 1966, a Bank Holiday. The plaintiff passenger having recovered judgment in default of defence against the driver of the motor cycle, who was the first defendant, was seeking at Assizes to recover damages also against the second and third defendants, who were respectively the owner and driver of the lorry. The case against those two defendants was founded on alleged negligence and alternatively on alleged nuisance. The learned trial Judge, however, found against the plaintiff on both issues. Hence this appeal.

The facts in essence are simple and were related by the learned trial Judge as follows:

"Wolseley Road, Plymouth, carries at certain times of day a substantial volume of traffic. It is in a built-up area, and subject to the statutory speed limit of 53 miles per hour. In the relevant length it is divided into twin carriageways by a central reservation which is broken at points to allow traffic to cross into side streets or to make 'U' turns. Each carriageway is some 24 feet in width. The lorry which was parked by the third defendant was on the outside of a very shallow right-hand bend in the north-bound carriageway. The lorry was some 7 ½ feet wide; accordingly it left unobstructed not less than 16 feet of carriageway for north-bound traffic to pass between the offside of the lorry and the central reservation.

"'The time of the accident, as I have already indicated, was 9.46 p.m. late in August after lighting-up time. The street lamps in Wolseley Road were alight; they offered excellent illumination. The lorry was parked immediately beneath a street lamp and its lights were also properly illuminated. Approaching the point where the lorry was parked in a northerly direction, as was the motor cycle driven by the first defendant, there was nothing whatever to obstruct the view of the parked lorry for a distance of at least 200 yards.

I am quite satisfied on the evidence that this accident happened for one reason only, namely, that the first defendant simply was not looking where he was going. If he had been, the accident could not have occurred, because there was the lorry plain for all to see. I have heard the evidence of a Miss Lashbrook, which I accept. She and another young girl with two young boys, all in their teens, were standing on the pavement talking and laughing together as the motor cycle ridden by the first defendant passed by, and her evidence is that as the motor cycle passed both the rider and the pillion passenger turned to look at the group on the pavement. They waved and one of them shouted. It is quite plain to my mind that it was because the motor cycle rider, perhaps in a Bank Holiday mood, allowed his attention to be distracted in that way from the road ahead of him that he reached a position, travelling as he himself says, at a speed of 30 to 35 miles per hour, so close behind the lorry before he realised it was in his path, and when he did realise that it was too late to take avoiding action."

How the lorry came to be parked on that dual carriageway was stated in the course of some further findings of the learned trial Judge. He referred to the fact that the driver of the lorry lived in a semi-detached house, No. 37, Wordsworth Crescent. That crescent ran parallel to Wolseley Road, but on the opposite side of the carriageway where the lorry was parked. The lorry driver's house fronted on to Wordsworth Crescent; it had no traffic entrance on to the Wolesley Road, nor, so far as we were informed, had it any other access to it beyond a common passageway leading from Wolseley Road to Wordsworth Crescent. In one sense, however, it can properly be said that the Wordsworth Crescent houses backed on to Wolseley Road.

Wordsworth Crescent was an extremely narrow residential street and one in which it was quite impracticable to park a large lorry. The lorry driver on this occasion had gone to his employer's premises some five miles away from his home at about 5 o'clock in the afternoon having in mind a long journey which he was going to make with the lorry the next day. He loaded the lorry in question and then drove it back towards his home with a view to making an early start on a drive to London the following morning at about 4 a.m. He adopted that course for his own convenience, as he preferred this way of doing his work to fetching the lorry from his employer's premises in the early morning. He parked it in Wolseley Road at about 6 o'clock in the evening and in due course he went and turned on the lights when lighting-up time came.

So far as negligence is concerned, it is sufficient to say that the finding of the learned trial Judge in favour of the defendants was right. To park a lorry, even of the size of the one under consideration, under a good street lamp on a one-way carriage track 34 feet wide with its tail lights on at the appropriate time cannot be said to be negligent, at any rate when there was no evidence of difficulties likely to be caused to traffic (the traffic was said to be light at the relevant times), or as to the risk of heavy mist or fog supervening. Moreover, the lorry was parked in that position on a bend which is the more likely to be clear of other vehicles pursuing a normal course.

Accordingly, in this court the real challenge concerned the learned trial Judge's finding on the issue of nuisance. He held that the leaving of the lorry on the highway did not constitute a nuisance; that even if it did, damage of the kind suffered was not a foreseeable consequence; and, moreover, that the nuisance was not in any event the cause of the accident.

The first question to be answered is whether or not this lorry when left on the main road from 6 p.m. with a view to its not being moved until 3 a.m. constituted at 9.45 p.m. an obstruction of the highway which in law should be held to be a nuisance. It is at the outset to be observed that it was conceded by Mr. Fawcett, appearing for the owner and driver of the lorry, that there was no question in this case of the driver being able in relation to the road where the lorry was left to assert any special right as being the occupier of adjoining premises. That was an inevitable concession, in view of the fact, already mentioned, that 37, Wordsworth Crescent had no traffic exit on to Wolseley Road; nor was the lorry parked on the Crescent side of the road. It follows that the question whether the lorry constituted an obstruction falls to be determined in the same way as if the driver was any other vehicle user who had no such special rights.

The law on the question as to what constitutes a public nuisance in a highway is plain, despite the fact that in certain authorities cited to us dealing with wholly different sets of facts there can be found phrases apt to deal with those facts which, if taken out of context, could impair the clarity of the position. The relevant law is compactly stated in the judgment of Lord Evershed, Master of the Rolls in Trevett -v- Lee (1955 1 W.L.R. p.113, at p.117) where he said:

"The law as regards obstruction to highways is conveniently stated in a passage in Salmond on Torts, 13th edition, page 103: 'A nuisance to a highway consists either in obstructing it or in rendering it dangerous'. Then a numbed of examples are given which seem to me to show that prima facie at any rate when you put an obstruction to a highway you mean something which permanently or temporarily removes the whole or part of the highway from the public use altogether."

The phrase there quoted from the 13th edition of Salmond on Torts is again to be found in the current 15th edition at page 106, with a footnote accurately referring to the fact that it had been approved by Lord Evershed.

Next one can find in the judgment of Lord Denning, Master of the Rolls, in the unreported case of Morton -v- Wheeler (No. 33 in the Court of Appeal volume for 1956, a statement which is relevant, though the case itself was concerned with danger arising from some "sharp, fearsome-looking spikes" bordering the highway. There Lord Denning clearly recognised the existence of these two categories of nuisance affecting a highway when he said:

"As all lawyers know, the tort of public nuisance is a curious mixture. It covers a multitude of sins. We are concerned to-day with only one of them, namely, a danger in or adjoining a highway. This is different, I think, from an obstruction in the highway. If a man wrongfully obstructs a highway, or makes it less commodious for others (without making it dangerous) he is guilty of a public nuisance because he interferes with the right of the public to pass along it freely."

Then a little later he said:

"Danger stands, however, on a different footing from obstruction."

When looking at authorities concerned with highway nuisances it is important to remember that there are these two categories, because otherwise phrases relating to the second - danger -category may be read as necessarily applying to the first - simple obstruction. It is, however, prima facie common to both categories - which can in fact overlap - that in neither is it necessary to prove negligence as an ingredient (see per Lord Simonds in Held -v- Lyons, 1947 A.C. at pp.182-3; per Lord Justice Devlin (as he then was) in Farrell's case, 1964 Lloyds Law Reports, p.440; and per Lord Denning in Morton -v- Wheeler); that in both proof of what is prima facie a nuisance lays the onus on the defendant to prove justification (compare Southport -v- Esso 1952 2 Q.P. p.187); and that, of course, neither is actionable - in the sense that a claim for damages can succeed - unless the plaintiff can establish that damage has actually been caused to him by the nuisance.

Leaving on one side those in somewhat special positions, such as frontagers, the common law rights of users of highways are normally confined to use for passage and repassage and for incidents usually associated with such use, such as temporary halts and those emergency stops which often give rise to difficulties, and have had to be considered in a number of authorities. The leaving of a large vehicle on a highway for any other purpose for a considerable period (it is always a matter of degree) otherwise than in a lay-by prima facie results in a nuisance being created, for it narrows the highway. With all respect to the views expressed by the learned trial Judge as to the ways of life to-day, I am unable to accept his conclusion that the parking for many hours for the driver's own convenience of a large lorry on a highway of sufficient importance to have a dual carriageway did not result in the creation of a nuisance. One has only to think of the effect of thus reducing the width of such a road to about 16 feet when two other large lorries or similar vehicles happen to be overtaking each other to appreciate why his conclusion cannot stand. The more vehicles that were to adopt the same tactics in these container lorry days, the worse the situation would become.

The law on this point has not changed merely because nowadays one comes across large numbers of cases in which owners or users of vehicles "obstruct the highway to a greater degree than is permissible hoping that no-one will object"', to adopt the phrase of Lord Reid in Wagon Mound No. 2 (1967 A.C. p.639). It follows that in my judgment the driver's convenience was no justification for the lorry being left in Wolseley Road by the third defendant. It thus constituted a nuisance at the time when the first defendant drove into it.

But the mere fact that a lorry was a nuisance does not render its driver or owner liable to the plaintiff in damages unless its being in that position was a cause of the accident. Mr. Harvey, for the appellant, strove manfully to get us to hold that once nuisance is established the usual rules as to causation do not apply. He urged that there existed some form of strict liability which does not obtain even when a breach of absolute statutory liability has been proved. That, in my judgment, was an untenable proposition.

Reference has already been made to the fact that the learned trial Judge (page 5 of his judgment) stated:

"I am quite satisfied on the evidence that this accident happened for one reason only, namely, that the first defendant simply was not looking where he was going."

Moreover, towards the end of his judgment (at page 17), when discussing what would be the position if he was wrong in holding that the lorry did not constitute a nuisance, he said:

"It may in the end be a matter of causation, a matter simply of saying that even if this was a common law obstruction, nevertheless as such it was not causative of the present accident. The accident was, as I said in the first part of this judgment, wholly attributable to the fact that the first defendant as he rode along was watching the attractive young ladies on the pavement instead of looking ahead of him to see what conditions he was about to encounter."

That is in effect a finding that the sole cause of the accident was the first defendant's negligence. On the facts, that was in my judgment a correct conclusion. It entails a parallel conclusion that the nuisance was not a cause of the plaintiff's injuries: that, indeed, in the vast majority of cases is an inevitable conclusion once negligence on the part of the driver of a stationary vehicle is negatived, for only rarely will that which was found not to be a foreseeable cause of an accident also be found to have been in law the actual cause of it. For that reason, I would dismiss this appeal.

It is thus not necessary to decide a further point inherent in much that was canvassed before us as to the ingredients of nuisance of the category under consideration. What would be the position if, even though the third defendant had not been negligent in leaving the lorry as it was in fact left, yet there had occurred some unexpected supervening happening - such as an onset of heavy weather sea mist or fog, or, for instance, a sudden rear light failure (potent cause of fatalities) - which had so affected the situation that the lorry became the cause of an accident? Should the risk fall entirely on those using the highway properly? Or should some liability attach to the person at fault in creating a nuisance? It may well be that, as I am inclined to think, he who created the nuisance would be under a liability - despite certain views expressed in Parish -v- Judd, 1960 1 W.L.R. p.867 (a temporary emergency stop case - correctly decided as such), which I understand are about to be repeated by my brother Lord Justice Edmund Davies and with which, as at present advised, I am unable to concur. If he was thus liable this might be the only class of case in which an action in nuisance by obstruction of the highway could succeed where one in negligence would fail. That, however, on the facts touching causation found by the learned trial Judge remains an issue which can be decided on some other occasion.

LORD JUSTICE EDMUND DAVIES: I agree in the dismissal of this appeal but desire to add some observations of my own. I think I should first say something about my extemporary (and unrevised) judgment in the case of Parish -v- Judd (1960 1 W.L.R. p.867) which has been referred to in the course of argument. The facts there dealt with were substantially different from those of the present case. There the lorry and towed car which obstructed the highway had come to rest only a few moments before the oar carrying the plaintiff crashed into them. In no sense had they been "parked" on the carriageway as that term is generally understood and as happened in the present case. Again, the lorry and the oar were stopped not simply as the result of an act of pure volition and choice on the lorry-driver's part, but in an emergency and solely in order that he could ensure that all was well with the towed car and its driver. It was against the background of those facts that the court was called upon to adjudicate upon the alleged liability of the driver of the stationary car into which that carrying the plaintiff crashed, notwithstanding that the former vehicle was clearly visible 100 yards away. In saying (at p.869) that "the mere fact that an unlighted vehicle is found at night upon a road is not sufficient to constitute a nuisance"', I hope and believe it is clear from the immediately ensuing passages in the judgment that what I there had in mind was that, although the vehicle was so "found", its driver might nevertheless be exculpated if, for example, it emerged that it was only momentarily stationary and that without fault on his part. This emerges from the citation made from Maitland -v- Raisbeck (1944 1 K.B. p.689). It seems clear from that and other cases that it is the leaving of vehicles on the highway which constitutes the first of the two types of public nuisance dealt with by Lord Evershed, Master of the Rolls, in Trevett -v- Lee (1955 1 W.L.R. p.113 at p.117). Thus, the examples of obstructions of the highway which amount to nuisance given in Salmond on Torts, 15th edition, p.106, include "leaving horses and carts, or motor-vehicles, standing in it for an unreasonable time or in unreasonable number", several reported cases being cited in support of the examples given. In Maitland -v- Raisbeck Lord Greene, Master of the Rolls, said:

"Every person .... has a right to use the highway and, if something happens to him which in fact causes an obstruction to the highway but is in no way referable to his fault, it is quite impossible, in my view, to say that ipso facto and immediately a nuisance is created. It would be obviously created if he allows it to be an obstruction for an unreasonable time or in unreasonable circumstances, but the mere fact that it had become an obstruction cannot turn it into a nuisance .... If that were not so, it seems to me that every driver of a vehicle on a road would be turned into an insurer in respect of latent defects in his own machine."

Where a vehicle has been left parked on the highway for such a length of time or in such other circumstances as constitute it an obstruction amounting to a public nuisance, I remain of the view I expressed in Parish -v- Judd that, in order that a plaintiff who in such proceedings as the present may recover compensation for personal injuries caused by a collision with that obstruction, he must establish that the obstruction constituted a danger. Nothing to the contrary was said by Mr. Justice Devlin (as he then was) in Farrell -v- John Mowlem & Co. Ltd. (1959 Lloyds L.R. p.437), which was strongly relied upon by Mr. Harvey. What the learned Judge there said of the pipe which the defendants had laid across the pavement was:

"No doubt it is a comparatively harmless sort of nuisance in that most members of the public may be expected to see the pipe, and it will not cause them any grave inconvenience, but that does not prevent it being a nuisance in law",

all of which connotes that the pipe nevertheless in fact constituted a danger to those less vigilant passers-by who are commonly to be found. Mr. Harvey understandably stresses the further passage in which Mr. Justice Devlin observed:

"It is no answer to say, 'I laid the pipe across the pavement, but I did it quite carefully and I did not foresee and perhaps a reasonable man would not have foreseen that anybody would be likely to trip over it. He has created a nuisance, and consequently he is liable for what follows."'

In Overseas Tankship Ltd. -v- Miller Steamship Co., Wagon Mound No. 2 (1967 A.C. p.617, at p.638) Lord Reid said of this decision that

"The only case where there is an express statement that liability does not depend on foreseeability is Farrell -v- John Mowlem",

and, regarding the passage just cited, Lord Reid added laconically:

"He (the learned Judge) cites no authority."

In the unreported case of Morton -v- Weaver (decided by this court on 31st January, 1956) Lord Denning drew the same distinction between obstructions of and dangers on the highway as that referred to by Lord Evershed, Master of the Rolls, in Trevett -v- Lee. But it is by no means always possible to allocate the facts of a particular case to only one or other of these two categories. It is notorious that what obstructs a highway may also create great danger to those who travel along it, while, on the other hand, danger unaccompanied by obstruction or obstruction giving rise to no danger may occur. In the present case Mr. Harvey, not surprisingly, contended that the second defendants' parked lorry did in fact constitute a danger. Lord Justice Denning in Morton -v- Weaver 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."

But it goes without saying that the person creating a highway obstruction must be alert to such sudden and unpredicted weather changes as those to which we are subject in this country at most seasons, to the possibility that the vehicular or highway lighting may fail or be interfered with in these days of rampant vandalism, and to other circumstances which may convert what was originally a danger-free obstruction into a grave traffic hazard. If he fails to exercise ordinary intelligence in those and similar respects, he can make no proper claim reasonably to have anticipated the probable, shape of things to come, and he must expect his conduct to be subjected to the most critical scrutiny in the event of an accident occurring.

Claims in nuisance for personal injuries sustained by colliding with vehicles obstructing highways do not affect the general rule that negligence is not a necessary element in nuisance. The tortuous route which has led to an action for nuisance being available in respect of personal injuries was admirably explored by Professor Neward in The Boundaries of Nuisance (1949 68 Law Quarterly Review p.480). What he there calls the "simple" principle, that negligence is not an element in the tort of nuisance, is well illustrated by the many reported cases of unlawful interference with a man's enjoyment of his land, it being no defence to say that no such interference was intended and even that all proper care was taken to avoid it. But in my judgment a different approach is called for where damages are sought to be recovered in respect of personal injuries said to have been caused by nuisance arising from the inexcusable presence of vehicles on highways. If deliberately created and clearly giving rise to danger to road users, fault is implicit and liability incontestable. But if an obstruction be created, here too, in my judgment, fault is essential to liability in the sense that it must appear that a reasonable man would be bound to realise the likelihood of risk to highway users resulting from the presence of the obstructing vehicle on the road. In this context it is interesting to recall the words used by Mr. Justice Fitzherbert in 1535 in the case (reported in the Year Book for the second year of King Edward 4, the Easter Term, P. No. 21) which, in the words of Professor Newark, "set the law of nuisance on the wrong track"'. By way of illustrating that a man who has suffered special injury from a public nuisance may recover compensation therefor, Mr. Justice Fitzherbert said:

"As if a man make a trench across the highway, and I come riding that way by night, and I and my horse together fall in the trench so that I have great damage and inconvenience in that, I shall have an action against him who made the trench across the road because I am more damaged than any other man."

The nature of this illustration is itself significant. The trench being dug "across" the highway, and the horseman "riding that way by night" are the typical ingredients of a situation where any reasonable person must have realised that a danger to highway users was being created. That, as I see it, remains to-day an essential ingredient in cases for personal injuries brought in circumstances such as those existing in the present case. It is true that in the result, as Lord Justice Denning said in Morton -v- Weaver,

"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, as he went on to point out,

"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."

Did this particular lorry, parked as it was in all the circumstances described by my Lord, constitute a danger at any time? I deliberately restrict my question in that way, since I am far from desiring to give the slightest encouragement to the unnecessary and avoidable parking of vehicles for lengthy periods, especially on highways designed as Wolseley Road was, for (as the trial Judge said) "a substantial volume of traffic". But, having so limited it, I have come to the clear conclusion that, although it constituted an obstruction, and therefore a public nuisance (having been deliberately and inexcusably left parked for several hours), it did not present a danger to those using the highway in the manner in which they could reasonably have been expected to use it.

This question of danger is, of course, inextricably linked up with that of causation. Mr. Harvey boldly submitted that, once it be found that this lorry so obstructed the highway as to amount to a nuisance, this created a situation of strict liability, with the result that the matter of causation is immaterial and the plaintiff must necessarily succeed. He was therefore driven to assert that, supposing in the present case the motor-cyclist had for some reason lost control of his vehicle some distance back and thereafter in the course of its unchecked progress it happened to strike the parked lorry (when it might equally well have crashed into a house adjoining the highway), the lorry driver would be liable in nuisance for any personal injuries resulting from the collision. Mr. Harvey appeared hesitant even as to whether there can be room for a finding of contributory negligence in such cases as the present, and this despite Farrell -v- Mowlem itself, where Mr. Justice Devlin dealt with the components of such a defence to a claim based on highway nuisance. But he was unable to explain why, if he is right, his submissions should not apply equally to other cases of strict liability, such as those arising under Rylands -v- Fletcher and the Factories Act. With all respect to learned counsel, I feel I need say no more by way of rejecting his submission that causation is here irrelevant than my Lord has already said. To accede to it would have led to the creation of a new sort of tort, a legal freak. For my part, I am not prepared to act as its midwife. Granted that a highway be obstructed, it is still for the party suing to show that the existence of the obstruction played some part in bringing about the collision. For this purpose it is not enough to say baldly, as Mr. Harvey has done;

"There would have been no collision in the Wolseley Road that night had there been no parked lorry to collide with."

To submit that is to adduce in the most blatant form Causa sine qua npn as an all-sufficient basis for a finding of liability.

The learned Judge held, on ample evidence, that the lorry "was not causative of the present accident. It was wholly attributable to the fact that the first defendant, as he rode along, was watching the attractive young ladies on the pavement, instead of looking ahead of him to see what conditions he was about to encounter." That was a conclusion to which he was fully entitled to come, and it was, of itself and regardless of all other points canvassed, fatal to the plaintiff's case. Accordingly, despite the attractively presented and valiant attempt of Mr. Harvey to persuade us to the contrary, I would concur in dismissing this appeal.

LORD JUSTICE STEPHENSON: I agree that this appeal must be dismissed. In a clear and careful judgment the learned Judge found that the accident that occurred to the plaintiff was wholly attributable to the negligence of the first defendant. How then can this plaintiff's appeal succeed? Only, in my judgment, by our holding that the third defendant created a nuisance by parking the second defendants' lorry on this road and that the happening of the collision between the lorry and the first defendant's motor cycle thereby entitles the plaintiff to recover from these defendants at least some damages for the injuries which he suffered as a result of that collision. For I agree with the learned Judge, for the reasons that he gave and those given by my Lord, that the plaintiff wholly fails to establish any negligence on the part of the third defendant in the manner in which the lorry was parked or in failing to foresee the form of folly which the first defendant's driving of his motor cycle took.

On nuisance, I am, like my Lord, Lord Justice Sachs, unwilling to go as far as the learned Judge in holding that the parking of this lorry, though careful and reasonable from the third defendant's point of view, was in the light of the realities of life to-day, as the learned Judge puts it, inoffensive from the public point of view and could not possibly have inconvenienced or endangered anybody who looked where he was going. Though the risk of danger was not such as to make the third defendant negligent in parking it when and where and as he did, there might have been a worsening of traffic conditions of the kind indicated by my Lord; and even if the risk of such worsening was remote, the parking of a lorry 7 ½ feet wide on a main highway for something like nine hours seems to me to constitute an unauthorised obstruction which in the present state of the authorities was prima facie a nuisance actionable at the suit of a person injured by it (whether foreseeably dangerous or not at the time when it was created), because it was not justified by any right to park it there in the third defendant as a user of the highway or as occupier of adjoining premises or in any other capacity. I agree with my Lord that there may still be rare cases when an injured plaintiff's claim in nuisance may succeed although his claim in negligence falls. However, I agree also that we do not have to decide that question, because I agree with the learned Judge that even if the parking was tortious it was not causative of the plaintiff's accident. Mr. Harvey boldly contended that that does not matter, and that once a public nuisance on a highway was created, the creator was in the uniquely unfortunate position of being unable to say that a collision with the obstruction constituting the nuisance was wholly the fault of another, such as the first defendant who drove the plaintiff into it. Mr. Harvey conceded that, though worse off in this respect than defendants labouring under any other form of strict liability, such as an absolute statutory duty, the creators of such nuisances were like other defendants able to avail themselves of a plea of contributory negligence. But, "or some reason which even Mr. Harvey did not make clear to me, or support by any authority, they could not, he submitted, escape liability altogether by proving the person who collided with the obstruction 99 per cent or 100 per cent to blame.

Like my Lords, I reject the attempt to confer this privilege on those who collide with an unauthorised obstruction in the highway, and I agree that the learned Judge was right in dismissing the plaintiff's claim in nuisance against the second and third defendants and in finding that the first defendant was wholly to blame for the accident,

(Appeal dismissed. Application for payment of the second and third defendants- costs of the appeal out of the Legal Aid Fund adjourned for further hearing)

Monday, 7th February, 1972

(Ordered that the second and third defendants' costs be paid out of the Legal Aid Fund, including costs of today's hearing)