Private Law Theory

ABSTRACT
It is central to the exclusion paradigm of property law that visual intrusions, however unpleasant, cannot amount to actionable wrongs. This proposition is best captured by Lord Camden CJ’s famous dictum that, ‘the eye cannot by the laws of England be guilty of a trespass’. This settled understanding has been upended by the recent decision of the Supreme Court of the United Kingdom in Fearn v Board of Trustees of the Tate Gallery (‘Fearn’), in which the Court unanimously held that acts of visual intrusion can amount to a nuisance, and a majority found that nuisance had been established on the facts. This article argues that the decision in Fearn sets an undesirable precedent that should not be followed in other common law jurisdictions.

Crawford, Michael JR, The Tort of Nuisance: From the Outside Looking in (2024) 47(3) Melbourne University Law Review 554.