Lloyd's Maritime and Commercial Law Quarterly
LOSS OF CUSTOM AND PUBLIC NUISANCE: THE AUTHORITY OF RICKET
JW Neyers* and Eric Andrews†
In Colour Quest v Total Downstream, David Steel J held that loss of custom was a recoverable head of damage in the tort of public nuisance. He also held that the decision of the House of Lords in Ricket v Metropolitan Railway, which determined that such recovery was impermissible, had been overtaken by later authority. It is submitted that this interpretation of the case law is incorrect. Subsequent decisions are either consistent with Ricket, independently justifiable as being claims about private rights or unsustainable on stare decisis grounds. An important insight gleaned through this case analysis is that the concept of directness applied in the tort of public nuisance is equivalent to the well-understood concept of privity applied elsewhere in private law.
A. INTRODUCTION
In Colour Quest Ltd v Total Downstream UK,1 David Steel J held that “there is long standing and consistent authority in support of the proposition that a claimant can recover damages in public nuisance where access to or from his premises is obstructed so as to occasion a loss of trade attributable to obstruction of his customers’ use of the highway and liberty of access”. This is a surprising statement of the law, given that in Ricket v Metropolitan Railway Co
2 the House of Lords seemed to indicate that such a claim is not actionable in the tort of public nuisance. In Colour Quest,3 David Steel J said the “decision in Ricket is now in a state of some disrepair” and he offered 23 paragraphs of analysis purporting to demonstrate this disrepair and the accuracy of his understanding of the law.
With respect, our own reading of the case law is that David Steel J is wrong both to assert that there is “long standing and consistent authority” supporting a claim for loss of custom in the tort of public nuisance and to suggest that the authority of Ricket, at least in regard to its claims about loss of custom, is in a state of actual disrepair. Such a difference between the actual state of affairs and those perceived by David Steel J is explained by two factors. The first is that generations of lawyers and judges, in the field
* Faculty Scholar and Professor of Law, University of Western Ontario, Canada.
† Student-at-Law, University of Western Ontario, Canada.
Following modern convention, we have changed all references to “plaintiff” to “claimant” in the quoted material.
1. [2009] EWHC 540 (Comm); [2009] 2 Lloyd’s Rep 1, [459]. The case was appealed on issues unrelated to David Steel J’s analysis regarding the recovery of loss of custom in public nuisance: see Colour Quest Ltd v Total Downstream UK Plc [2010] EWCA Civ 180.
2. (1867) LR 2 HL 175.
3. Colour Quest, [2009] EWHC 540 (Comm); [2009] 2 Lloyd’s Rep 1, [458].
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