Leakey v National Trust [1979] EWCA Civ 5

The National Trust owned a hill which, due to natural processes, was at risk of slipping onto the plaintiffs' property below. Despite being aware of the danger, the Trust did nothing. The court found the Trust liable for the resulting damage.

Facts

The plaintiffs were the owners of two houses in Somerset, located at the foot of a large, steep-sided conical hill known as Burrow Mump. The defendant, the National Trust, owned Burrow Mump. The hill was geologically unstable and prone to cracking and slipping due to natural weathering processes. In 1968, the plaintiffs noticed a large crack appear in the steep bank above one of their houses and brought it to the attention of the National Trust. The Trust’s representative took the view that the Trust was not responsible for harm caused by natural processes on its land. Over the following years, the plaintiffs repeatedly expressed their concerns about the risk of a landslip. In 1976, a large portion of the bank slid down onto the plaintiffs’ land, causing damage to their garden and threatening one of the houses. The plaintiffs sought an injunction and damages in nuisance.

Issues

The central legal issue was whether an owner of land has a duty of care to prevent damage to a neighbour’s property from a hazard that arises naturally on their own land. Specifically, the court had to decide if the principle established in Goldman v Hargrave [1967] 1 AC 645, which imposed liability for damage caused by a naturally occurring fire that the landowner failed to extinguish, extended to other natural hazards such as a landslip.

Judgment

The Court of Appeal unanimously dismissed the National Trust’s appeal, upholding the trial judge’s decision in favour of the plaintiffs. The court held that a landowner is under a positive duty to take reasonable steps to prevent or minimise a known risk of damage to a neighbour’s property arising from natural causes.

Reasoning of Megaw LJ

Megaw LJ, delivering the leading judgment, affirmed that the principle laid down by the Privy Council in Goldman v Hargrave was a correct statement of the common law of England. He rejected the older, conflicting authority of Giles v Walker (1890) 62 LT 933, which suggested no liability for things growing naturally on land. He held that the duty applies to any hazard, not just fire, that an occupier knows or ought to know presents a risk to their neighbours.

He articulated the nature and scope of this duty of care:

The duty is a duty to do that which is reasonable in all the circumstances, and no more than what, if anything, is reasonable, to prevent or minimise the known risk of damage or injury to one’s neighbour or to his property.

Crucially, Megaw LJ clarified that this duty is a ‘measured duty of care’, meaning the standard required of the landowner is subjective and tailored to their individual circumstances. This includes their knowledge of the hazard, the extent of the risk, and their financial and physical ability to prevent the harm. He stated:

The criteria of reasonableness must include… the factor of what the particular man – not the average man – can be expected to do, having regard, amongst other things, where a serious expenditure of money is required to eliminate or reduce the danger, to his means. The law must take account of the fact that the occupier on whom the duty is cast has, ex hypothesi, had this hazard thrust upon him through no seeking or fault of his own.

On the facts, the National Trust was aware of the hazard, it was foreseeable that a slide would occur, and as a large organisation with considerable resources, it was reasonable to expect it to take preventative measures. Its failure to do so constituted a breach of its duty.

Implications

The decision in Leakey v National Trust is a landmark case in the English law of nuisance and tort. It firmly established that an occupier of land can be liable for a nuisance caused by their failure to act (non-feasance) in response to a naturally arising hazard. The case extended the ‘measured duty of care’ from Goldman v Hargrave to encompass a broad range of natural land conditions, such as soil erosion and landslips. By imposing a subjective standard of care that considers the defendant’s resources, the judgment represented a significant departure from the typically objective ‘reasonable person’ standard in tort law, creating a more equitable but less certain basis for liability in such cases.

Verdict: Appeal dismissed. The National Trust was held liable in nuisance for the damage caused by the landslip.

Source: Leakey v National Trust [1979] EWCA Civ 5