From: Robert Stevens <>
Date: 28/05/2009 19:46:32 UTC
Subject: RE: [Fwd: Re: Stephens v Anglian Water Authority]

Serious answer.

(i) I have always thought that the doctrine of 'abuse of rights' is

mislabelled. It really concerns abuse of liberties. If you have a liberty

with respect to me to do X, I have no right with respect to you that you

refrain from doing X. If you violate a right, that is a wrong, and

actionable without the need for any further principle.

(ii) I don't agree with either Andrew T or (on one reading) Janet that

Bradford v Pickles concerned an "immunity". Bradford had no property right

in relation to the percolating water. Without a right to the unimpeded

flow of water, the loss they suffered was damnum absque injuria. If they

had had a property right such as an easement they would have won. But they

didn't. There was no prima facie wrong, so there was no immunity from

liability for having commited one.

(iii)  Just as we do not have absolute liberties in relation to how we

drive our cars, it is difficult to see why we should have absolute

liberties to divert a water flow on our land. If the plaintiff can stand

upon another right in order to bring a claim, the absence of a right to

the flow of the percolating water is irrelevant. Taking an obvious

example, if the blocking of the flow foreseeably physically injures the

plaintiff, there seems to be no reason why liability should not be


We do not, of course, have general rights good against others that they

confer benefits upon us. Andrew T's examples of throwing away the medicine

that you need and I have, or negligently failing to give someone a job are

of this kind. Stephens v Anglian Water Authority was not like this

however. By diverting the water the defendant damaged the plaintiff's

house. If I own an asset I have a right good against all others who can

reasonably foresee that their conduct may damage it that they take care

not to do so. This was not a case of someone failing to confer a benefit.

Now, one of the ways the law does impose positive duties on people to

confer benefits on others is the duty of one landowner to take positive

steps to provide support to his neighbour's land. i don't think Stephens v

Anglian was a case like this.

Reading it again, the CA seem to have confused the different senses in

which we use 'rights' and to have conflated damnum and injuria (the latter

happens all the time).  If it were the case that whenever someone else

intentionally caused me loss I could sue, then Bradford v Pickles would

involve an "immunity" and it would then have to be determined whether that

immunity covered all of the ways in which loss can be inflicted. That

isn't the law, nor should it be.

(iv) It might be thought objectionable that the defendant's liberty to

divert the water as he so chose was lost by the plaintiff's building a

house. This is however commonplace in law. In driving my car down the

Iffley Road in Oxford I owe no duty of care to someone living in Venezuela

as they are not within the class of persons who could possibly be injured.

If, however, they move to East Oxford and cross the road when I am

driving, I owe them a duty which I would not otherwise be under.

(v) I dissent from Andrew's characterisation of rights in the common law

as somehow absolute. Freedom for the pike is death for the minnow, and we

are all both pikes and minnows. Just as it is impossible to imagine a

world where our liberties were absolute, rights too have boundaries. The

most obvious example of the compromise the law makes in the drawing the

line between your liberty and my right is the duty that you *take care*

not to injure me. That duty is not absolute, nor indeed could it be

without abandoning the idea of a duty with a correlative right altogether.


[Disclaimer: Written on a bus on the M40 with a child wailing next to me,

and so may make even less sense than usual.]

> But you can cook hot dogs in it.  Andrew


>>  -----Original Message-----

>> From:        Robert Stevens []

>> Sent:        28 May 2009 18:24

>> To:        Jason Neyers

>> Cc:        Andrew Tettenborn;

>> Subject:        Re: [Fwd: Re: Stephens v Anglian Water Authority]






>> > But why a right to support from brine but not from water?


>> Because you cannot drink brine.

>> RS



>> [CC]Office[/CC]

>  [CC]Office[/CC]

> This message and any attachment are confidential and may be privileged or

> otherwise protected from disclosure.

> If you are not the intended recipient, please telephone or email the

> sender and delete this message and any

> attachment from your system.  If you are not the intended recipient you

> must not copy this message or attachment

> or disclose the contents to any other person.


> Clifford Chance LLP is a limited liability partnership registered in

> England & Wales under number OC323571.

> The firm's registered office and principal place of business is at 10

> Upper Bank Street, London, E14 5JJ.

> For further details, including a list of members and their professional

> qualifications, see our website

> at The firm uses the word 'partner' to refer to a

> member of Clifford Chance LLP or

> an employee or consultant with equivalent standing and qualifications. The

> firm is regulated by the Solicitors Regulation Authority. The Authority's

> rules can be accessed by clicking on the following link:



> Clifford Chance as a global firm regularly shares client and/or

> matter-related data among its different

> offices and support entities in strict compliance with internal control

> policies and statutory requirements.

> Incoming and outgoing email communications may be monitored by Clifford

> Chance, as permitted by applicable law and regulations.


> For further information about Clifford Chance please see our website at

> or refer

> to any Clifford Chance office.





Robert Stevens

Professor of Commercial Law

University College London