Private Law Theory

ABSTRACT
This article critiques the UKSC’s decision in Fearn v Board of Trustees of the Tate Gallery which held that visual intrusion could ground a claim in private nuisance. It challenges the court’s departure from the traditional ‘physicalist’ understanding of nuisance, arguing that this shift creates conceptual confusion, disregards established precedent of the highest authority, and undermines the coherence of the law. The article advances the orthodox view that liability for private nuisance requires two steps: first, an interference with a land-specific right (such as an ad coleum, natural, or acquired right), and second, an assessment of whether that interference is sufficiently serious to be actionable. The article contends that the court in Fearn erred by focusing solely on the intensity of the visual interference, thereby neglecting the first step of the analysis. Furthermore, the article argues that the cases relied upon by the court to challenge the physicalist framework either align with it when properly analyzed (in light of natural and acquired rights) or are examples of public nuisances or privacy breaches. As a result, the article contends that the Supreme Court of Canada should not follow Fearn.

JW Neyers and Madelaine McDonagh, A Defence of the ‘Physicalist Heresy’: Or Why the Supreme Court of Canada Should Not Follow Fearn v Tate Gallery, 5 Journal of Commonwealth Law 75 (2025).