Geoi-frey Samuel 164 are recoverable in English law only on the proof of fault. The image of escaping oil is just as analogous to escaping fumes which have been treated as a publie nuisance allowing the owner of adjacent property to recover damages without proof of fault.53 Nevertheless the trial judge, supported by the House of Lords, reached the conclusion that the plaintiff could not recover damages because they had failed to prove that the defendants’ employee was at fault. The image here was one between two legal subjects (personae), one causing, and another suffering, damage as a result of an act. This is an image where the normative dimension attaches, and can attach given the image, only to the persons themselves; accordingly the quasi normative notions of damage and fault assume central roles. But why, then, did the Court of AppeaL^ arrive at a different conclusion fromthe trial judge and the House of Lords? The key is to be found in the reasoning of Denning LJ.55 According to this judge when the old cases are applied to modern instances, it is becomes clear that it is a public nuisance to discharge oil into the sea in such circumstances that it is likely to be carried on to the shores and beaches of on of Her Majesty’s subjects. It is an offence punishable by the common law and should any person suffer greater damage or inconvenience from the oil than the generality of the public, such a person can have an action to recover damages. Comparing nuisance with negligence, Denning LJ said that one of the principal differences was the burden of proof: once a publie nuisance is proved and the defendant is shown to have caused it, then the legal burden is shifted on to the defendant to justify or excuse himself and if he fails to do so, he is held liable. In an action for negligence, on the other hand, the legal burden in most cases remains throughout on the plaintiff and, although the judge may gain much help from provisional presumptions like the doctrine of res ipsa loquitur, he must ask himself whether the legal burden is discharged. If the matter is left evenly in the balance in a negligence case, the plaintiff fails. But in public nuisance, said Denning LJ, the legal burden shifts to the defendant, and it is not sufficient for himto leave the matter in doubt; he must plead and prove a sufficient justification or excuse. With regard to this last point Denning LJ continued: The defendants seek to justify themselves by saying that it was necessary for themto discharge the oil because their ship was in danger. She had been driven by rough seas on to the revetment wall, and it was necessary to discharge the oil in order to get her off. If she had not done so, lives might have been lost. This is, no doubt, true at that stage in the story, but the question is, howcame she to get upon the wall? If it was her own fault, then her justification fails, because no one can avail himself of a necessity produced by his own default. Where does the legal burden rest in this respect? Must the Southport Corporation prove that the Sec e.g., Benjamin v Storr (1874) LR9 CP 400. 5^ [1954] 2 QB 182. ” At p. 195 ff.
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