‘A ragbag of odds and ends’?

This post has been contributed by Dr Carol Brennan,  Module Convenor for Tort law.

Medical pills.

The tone of this description of public nuisance might lead one to doubt  the tort’s validity or importance. However a jurisdiction with a legal history similar to that of the UK, has seen a recent deployment of public nuisance in an interesting and instructive way.

A national public health disaster

The opioid crisis in the United States has reached epidemic proportions with tragic consequences. Referred to as a ‘national public health disaster’, it has resulted in the deaths of more than 400,000 people in the last 20 years with 130 people a day currently dying from overdoses.

Legal action has proliferated in recent years with cities, counties and states bringing some 2,600 civil lawsuits (ongoing) against multiple drugs manufacturers for exacerbating, if not causing, the crisis by false and misleading advertising and in some cases by allegedly manipulating drugs’ designs to give them specifically addictive qualities. The objective of the legal actions is not only to halt and punish the wrongdoing (strongly denied by the defendants) but to recover compensation that will fund medical care and rehabilitative programmes for those hundreds of thousands of suffering citizens.  

The use of this type of action has been expanding, with mixed results: success for the ‘Big Tobacco’ settlements and some pollution cases; failure in gun litigation and some lead paint cases.  Tort students will be interested in the tactical and procedural aspects of this litigation, not all of which are peculiar to the jurisdiction of the United States.

For instance, the process well-known in the UK of negotiated settlement was demonstrated by the settlement achieved by 24 states and US territories in September 2019 with Purdue Pharma, owned by the Sackler family whose cultural and philanthropic activities around the world have been funded by the proceeds of the sale of OxyContin. Although controlled and sanctioned by the courts, it did not involve a jury trial. Resulting in the bankruptcy of Purdue and reportedly worth $10 billion, the settlement was the result of years of negotiation between the parties.

The first state litigation to actually be tried in court originated in Oklahoma in 2017, against Johnson & Johnson, the manufacturer not only of baby powder but the drug fentanyl. A 33-day non-jury trial concluded in July 2019 with an award in favour of the plaintiff of $465 million. What relevance does this have for the student of British tort law? The essence of the action was the tort of public nuisance.

Public nuisance

Students will have learned that this is a crime as well as a tort and according to Attorney-General v PYA Quarries  (1957), it ‘….materially affects the reasonable comfort and convenience of life of a class of Her Majesty’s subjects.’ An ancient form of action, it was often invoked when something interfered with a right common to the general public, such as the use of roads, waterways or public spaces.

It is not helpful that it shares half its name with private nuisance which is strictly linked to the claimant’s interest in and enjoyment of land. Unlike private nuisance, recovery for personal injury is possible for public nuisance, as seen in the following example.

Corby Group Litigation

Corby Group Litigation Claimants v Corby BC (2008) was a case in which claims arose from the birth defects suffered by 18 children following their pregnant mothers’ exposure to teratogenic substances in mud and dust generated by the dismantling of the Corby Steel works. The local authority was liable for public nuisance in causing, allowing or permitting the dispersal of dangerous or noxious contaminants. It was also in breach of its statutory duty under the Environmental Protection Act 1990 s.34. There, the harm to the public was caused by environmental pollution but the similarities to the health crisis in Oklahoma are marked.

A current definition of public nuisance was cited by Dyson LJ in Corby Group Litigation: ‘The purpose of the law which makes it a crime and a tort to do an unlawful act which endangers the life, safety or health of the public is surely to protect the public against the consequences of acts or omissions which do endanger their lives, safety or health. One obvious consequence of such an act or omission is personal injury.’

This is very similar to that employed in the Oklahoma case. Common law public nuisance was codified in the Oklahoma 50 Statute 1981 s 1: ‘A nuisance consists in unlawfully doing an act, or omitting to perform a duty, which act or omission … annoys, injures or endangers the comfort, repose, health or safety of others; or renders other persons insecure in life or in the use of property.’

There are conceptual problems caused by the dual nature of public nuisance, not least around the question of the compatibility of civil and criminal actions. For further discussion, students should refer to R v Rimmington (2005) where the House of Lords declined the opportunity to hold that the crime of common law public nuisance was now obsolete, but at the same time recognising that it had been significantly replaced by statute.

The House of Lords in Rimmington reviewed the diverse history of the action, citing 19th century cases involving the deliberate exposure of the public to smallpox infection or the selling of meat unfit for human consumption. In Rimmington,  the sending of racist and abusive materials in the post and the mailing of a substance which appeared noxious through the post were both held not to constitute public nuisance, lacking the necessary element of harm to the community rather than to individuals.

An individual action for compensation in public nuisance is possible when the claimant can show special damage above the rest of the community (another problematic concept), as in Tate & Lyle v GLC (1983). However it is more common that representativeactions will be brought on behalf of the community in an Attorney-General’s relator action or under statutes like the Environmental Protection Act 1990, as in the Corby case.

In Oklahoma the victorious state plaintiff was said to be ‘acting under a duty to act on behalf of the community’. It is only one of many weapons in the legal arsenal against ‘Big Pharma’ in the USA, however a useful reminder of the many guises of public nuisance.

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