Leakey v National Trust for Places of Historic Interest or Natural Beauty

An occupier who knows, or ought reasonably to know, of a natural condition on land which threatens neighbouring property owes a duty to take such steps as are reasonable in the circumstances to prevent or minimise the resulting nuisance. The duty applies to hazards arising naturally as well as to those caused by human activity. It is not strict liability.

Reasonableness depends on the foreseeable risk and damage, the practicability, cost and timing of protective measures, and the occupier's means considered broadly. The fact that the claim is framed in nuisance does not defeat it merely because the duty is described as one of reasonable care.

The National Trust owned and occupied Burrow Mump, a steep hill above the claimants' houses. Its naturally unstable slope had long produced falls of soil and detritus. By 1968 at the latest, the Trust knew that the condition threatened the neighbouring properties. Following a substantial fall in 1976, it declined responsibility and offered the claimants a licence to enter its land instead.

O'Connor J held the Trust liable in nuisance and awarded modest damages after protective works had been undertaken under an interlocutory injunction. The Trust appealed, contending that English law imposed no liability for damage caused solely by natural forces, or alternatively that a claim pleaded in nuisance could not succeed where the asserted duty was one of negligence.

The central issue was whether an occupier owes a duty of reasonable care in respect of a known natural hazard on its land.

1. Appeal dismissed unanimously. Megaw LJ, with whose reasons Cumming-Bruce LJ expressly agreed, held that an occupier may be liable where a nuisance created by a natural condition of the land spreads to neighbouring property. Shaw LJ, despite misgivings, agreed that the authorities supported that result.

2. The governing duty is one of reasonable care, not strict liability. Once a latent defect or natural hazard becomes known, or ought reasonably to have become known, the occupier must take reasonable steps to prevent or minimise foreseeable harm. The origin of the hazard, whether natural or human, does not create a principled distinction. The court applied Goldman v Hargrave [1967] 1 AC 645 as accurately stating English law in this respect.

3. Rylands v Fletcher [1868] LR 3 House of Lords 330 concerned strict liability for an unusual and dangerous thing brought on to land for the defendant's purposes. It did not decide that an occupier can never owe a reasonable-care duty where the condition is natural. Sedleigh-Denfield v O'Callaghan [1940] AC 880 supported liability once an occupier knows, or ought to know, of a nuisance and fails without undue delay to remedy it.

4. The court held that Giles v Walker should be overruled. It also held that the reasoning supporting Pontardawe R.D.C. v Moore-Gwynn was no longer good law. The earlier decision in Rouse v Gravelworks Ltd. was not followed to the extent that it treated natural agencies as excluding liability irrespective of knowledge and reasonable care.

5. The scope of the duty required a practical assessment of the likelihood and gravity of harm, the available preventive measures, their cost and the time available. Financial means may be relevant, but only as part of a broad assessment; the law does not require intrusive investigation of the parties' resources. The Trust no longer disputed that, if the duty existed with that scope, it was liable on the facts.

6. The nuisance pleading sufficiently alleged breach of a duty to take reasonable care. No prejudice resulted from the absence of an express plea of negligence. The appeal was dismissed with costs; leave to appeal was granted.

• Court of Appeal: The National Trust's appeal was dismissed. The court upheld liability for nuisance founded on failure to take reasonable care in respect of a known natural hazard.

• High Court: O'Connor J held the Trust liable in nuisance on 20 January 1978, awarded £50 to Mr and Mrs Leakey and nominal damages of £2 to Mr Storey.

• High Court interlocutory stage: Bristow J dismissed the Trust's strike-out application and granted an interlocutory injunction requiring protective steps.