Urgent Action Required

That was (and is) the essential message of the Outrage To Optimism Report into the situation in Tairawhiti/Gisborne and Wairoa after Cyclone Gabrielle. But there may come a point where no progress is being made and people need to consider commencing formal legal proceedings. Consequently, plaintiffs must deftly time their litigation so as not to get crushed between often slow bureaucratic procedures and the immovable statute of limitations.

In a recent decision relating to an oil spill off the coast of Nigeria in 2011, Jalla and another v Shell International Trading and Shipping Co Ltd and another [2023] UKSC 16, the UK Supreme Court accepted that a nuisance involving “a one-off event or isolated escape” leading to damage able to be “assessed once and for all” was an exception to the rule that all nuisances are abatable and therefore continuing. As a result, the plaintiffs had the typical 6 years from at or about the date of the spill to bring a claim, and their failure to do so meant the claim was too late for limitation purposes, meaning it was not validly filed.

Background

The claim concerned a significant oil spill off the coast of Nigeria in December 2011 in which the oil migrated to the Nigerian Atlantic shoreline. The plaintiffs were two Nigerian citizens who brought a claim in the tort of private nuisance. A nuisance, in general, causes encroachment and damage onto the neighbour’s land and unduly interferes with the neighbour in the use and enjoyment of their land.

The plaintiffs argued that the failure to clean up the oil spill constituted a “continuing nuisance” which meant that each day the spill was not cleaned up, a fresh right to bring a claim arose.

This was important because in the UK, you have 6 years from the date the cause of action accrues to bring a claim in nuisance. In this case, if the failure to clean up the oil was not found to be a “continuing nuisance”, the right for these plaintiffs to bring a claim would have expired more than 6 years before the claim was brought (filed in Court) in April 2018.

Continuing Nuisance

As the Court noted, “far from being unusual, a continuing nuisance in the legal sense is commonplace in respect of the tort of private nuisance.” A continuing nuisance is where there is a repeated activity by the defendant or an ongoing situation for which the defendant is responsible causing undue interference with the use and enjoyment of the plaintiff’s land.

Noting that, the Court found that there was no continuing nuisance in this case – rather the oil spill was a “one-off event or an isolated escape”, because the oil pipe was no longer leaking after some six hours, and the oil reached the Nigerian shoreline within weeks not months. This meant that the cause of action accrued and was complete once the oil had reached the plaintiffs’ land. Just because the oil remained on the land and had not been cleaned up years later did not mean there was repeated activity or an ongoing situation.

To hold otherwise, Lord Burrows said, would be to convert the tort (or civil wrong) of private nuisance into a failure by the defendant to restore the claimant’s land, undermine the law of limitation of actions and create difficulties for the assessment of damages, which are generally to be assessed once and for all”.

Comment

There is no short and all-inclusive rule for distinguishing between complete and continuing nuisances, despite the UK Supreme Court’s most recent nuisance pollution decision. And one could argue that the erosion susceptibility of Tairawhiti/Gisborne and Wairoa districts is more akin to an ongoing situation than an oil spill which is perhaps more obviously a single event or single source.

But the Court’s attempt to define a continuing nuisance by what it is not – a “one-off event or an isolated escape” – is perhaps a timely reminder to potential claimants not to sit on their claims. We note:

• Plaintiffs need to have ‘brought an action’, i.e. commenced legal proceedings within the relevant limitation period. In practical terms, this means plaintiffs need to have filed a notice of proceeding and statement of claim in the court.

• If time is running out – as it may be on nuisance claims based on woody debris (including forestry slash) and sediment due to cyclones and/or heavy rain events prior to Cyclone Gabrielle – then you may be well advised to file a protective claim as a matter of urgency to extend (or stop) time running.

• A representative claim(s) brought on behalf of others with substantially the same interest will stop time for the whole represented class whether they have consented to the claim or not: Cridge v Studorp [2017] NZCA 376, a case in which we acted for the plaintiff group.

For more information or guidance on making a claim or a representative claim, contact Stuart Dalzell, James Wollerman or a member of our team.

Thank you to Sophie Barnao, Solicitor for writing this update.