Negligence or Nuisance?

March 1, 2022

Bill Hanbury & Jack Scott

Property disputes appear an increasingly common area of contention. Barrister William Hanbury and Pupil Jack Scott assess the implications flowing from the recent High Court case of Surer v Driver 2021] EWHC 3595 (TCC).


The claimant alleged negligence and nuisance by the adjoining homeowner, claiming that the defendant’s negligence and nuisance caused both physical damage and interference with the reasonable enjoyment of the claimant’s property.

The High Court examined when a cause of action is complete for both torts and found that where they had been interwoven it was not possible to give summary judgment without a full trial.


The claimant and defendant owned adjoining properties divided by a party wall. The claimant’s son and his wife lived in her house. The defendant’s house was unoccupied and in a serious state of disrepair.

The claimant alleged that the disrepair of the defendant’s property had caused flooding, damp, water ingress, mould and an infestation of rats to her property. As a result, the claimant claimed in both nuisance and negligence.

The claimant sought summary judgment and/or to strike out the defence on the basis that finding the defendant’s liability was inevitable; the disrepair was clear, encroachment had occurred and some damage had resulted. The claimant stated that any matters of causation the defendant wished to raise could be addressed as part of assessing quantum.

In response, the defendant relied upon the joint expert report. The experts disagreed on the consequences of the disrepair. Accordingly, the defendant’s position was that it was not a foregone conclusion that liability would attach to the defendant.

Negligence and Nuisance

The substantive issue turned on the different elements of the cause of action for both negligence and nuisance. The following are the main points:

  • A cause of action in negligence and nuisance is only complete once damage occurs
  • There are two types of nuisance in issue in this case
    • nuisance by encroachment; and
    • nuisance by interference with reasonable enjoyment of one’s property;
  • Nuisance by encroachment occurs when there is a single incident of encroachment, for example, water is caused to flow down the wall of the claimant’s property as a result of a defect in an overhanging gutter. The question then arises as to what loss, if any, has been caused.
  • Nuisance by interference with reasonable enjoyment is not complete until damage is proved i.e. one’s enjoyment is actually interfered with.
  • Similarly, in negligence, the court highlighted that the cause of is only complete when damage results from the act or omission action said to amount to a breach of the duty of care.

Had the case involved only a single act of encroachment, so that the only question was the quantum of loss flowing from that, summary judgment might have been available. But both the claimant and experts had (somewhat inevitably) not distinguished between the distinct torts. This conflation allowed the defendant to show a real prospect of success, as it was not clear which acts or omissions would be identified, nor the consequences of them.

The court’s finding highlights to claimants the importance of clearly establishing all the distinct elements of the causes of action for each alleged tort. Understanding and maintaining this distinction is often important in property disputes. It is of note that in some cases the property owner brings their claim in negligence and nuisance (as in Bradburn v Lindsay [1983] 2 All ER 408) whereas in others they bring the case solely in nuisance (as in the leading case of Leakey v National Trust [1980] QB 485). In other cases, there may also be an allegation that the claim arises under the doctrine of Rylands v Fletcher. However, for various reasons it may be necessary to distinguish between these different elements.

Procedural Matters

The claimant alleged that the defendant’s negligence and/or nuisance meant it was inevitable that liability would be established. Causation could therefore be addressed when quantum was decided, following the Court of Appeal case of Lunnun v Singh [1999] CPLR 587.

The claimant’s causes of action were interwoven. The court found the defendant had legitimate responses to some aspects of the claim. Accordingly, there was a real prospect of success on those aspects.

The outcome emphasises the high bar set for summary judgment and highlights to prospective claimants that the test for summary judgment is not actually the strength of the claimant’s case; but the weakness of the defence.

Causes of Action

The claimant drew the court’s attention to Lunnun v Singh (Hajar) [1999] CPLR 587, [1999] 7 WLUK 5, where default judgment for nuisance was entered after sewage water escaped from the defendant’s premises on to the claimant’s property. In Lunnun, the Court of Appeal held the default judgment did not prevent the defendant from challenging causation or particular items of loss.

The court distinguished Lunnun  on the basis that the encroachment in Lunnun was a single act of encroachment that caused the damage. In a nuisance claim that included loss of enjoyment of one’s property (rather than solely damage), there must be a connection between the defendant’s actions and the arising loss of enjoyment.

Where the allegation is one of negligence, the court reaffirmed that the cause of action is only complete when damage occurs from the act or omission (where there is a duty of care).


Applying these principles, the court held that the defendant had a real prospect of success, not least because the joint experts were not in agreement as to the cause of the damage to the claimant’s property.

Absent the causal link between each defect and the damage, neither the interference causing loss of enjoyment, nor the negligence torts could succeed. As such, summary judgment was not appropriate.

The case emphasises the need to analyse the causes of action before beginning the claim to avoid the headache of strike out/summary judgment applications.