Karteikarten
Tort - Nuisance
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- 1What is private nuisance?The interference with the use or enjoyment of another's land.
- 2Is it actionable per say, or must damage be proven?Damage must be proven.
- 3Who can sue?Only the landowner, tenant in possession or licensee with exclusive possession. The claimant must have a legal interest in the land.
- 4Who can be sued?The creator of the nuisance (if they can be found), the owner of the land. The owner is not normally held liable for nuisances caused by 3rd parties, but can be in exceptional circumstances.
- 5Can an owner be held liable for a nuisance created by a predecessor in title to the land?Only if they adopt and continue the nuisance.
- 6Can an owner be held liable for a nuisance created by trespassers?Normally, no. Not unless they become aware of the nuisance and continue to allow it, or adopt it, when it would be reasonable to take action to remedy the nuisance.
- 7Can an owner be held liable for a natuarlly occurring nuisance?Normally, no. Not unless it would be reasonable and inexpensive for the owner to remove the cause of the nuisance and they fail to do so.
- 8Can a landlord by held liable for a nuisance created by a tenant?The bar is high for a landlord to be held responsible for a nuisance cause by a tenant. The landlord must authorise it by actively and directly participating in it, or by leasing the property in circumstances where the nuisance was extremely likely, and there is little possibility of a nuisance not being created. See Coventry v Lawrence [2014] - nuisance racetrack. Also, if the landlord has expressly or impliedly reserved the right to enter and repair, they may be held liable for a related nuisance.
- 9What are the 3 elements of private nuisance?1. Indirect interference.
2. Damage.
3. Unlawful interference. - 10What is the difference between direct and indirect interference with land?Direct interference is trespass. Indirect interference includes: sounds, smells, fumes and vibrations.
An indirect interference occurs where the nuisance starts on the defendant’s land but then causes damage to some aspect of the claimant’s use or enjoyment of his land.
""If I pile a large compost heap on my land and it accidentally spills onto my neighbour’s land, this would be indirect interference and could constitute a nuisance if, over a period of time, it causes damage. However, if I decide to pile my compost heap on my neighbour’s land because I have run out of space on my land, this would be direct interference and would be classed as trespass, not nuisance.""
In practice, however, almost all indirect claims concern intangible interference, e.g. smells and fumes, etc. - 11Does it matter whether an event is a one off or continuous for a claim to be brought in nuisance?Yes. The general rule is that claims in nuisance form part of a continuing state of affairs. One off events are usually brought under negligence. There are rare exceptions to this, for example, in Spicer v Smee [1946] a claim was brought for a one-off fire that was the result bad wiring that was classified as an ongoing state of affairs.
- 12Can a claim of nuisance be brought for a failure to act, e.g. a landslip?Yes, this is called a nonfeasance.
- 13Courts have sometimes taken an exceptional approach to fires that cause massive damage. What is this approach?In Crown River Cruises v Kimbolton Fireworks [1996] and Colour Quest v Total Downstream [2010] the courts held that fire that causes massive damage can be considered a private nuisance, even when it's caused by a single event rather than an ongoing state of affairs.
- 14Is it possible to claim for personal injury in private nuisance?No. PN relates exclusively to land.
- 15What is similar about the approach to damage in nuisance and negligence?It must be reasonably foreseeable.
- 16What are the 2 types of damage that can be claimed under private nuisance?"1. Damage to property.
2. Sensible Personal Discomfort." - 17What is Sensible Personal Discomfort?“...the personal inconvenience and interference with one’s enjoyment, one’s quiet, one’s personal freedom, anything that discomposes or injuriously affects the senses or the nerves.” St Helen’s Smelting Co v Tipping (1865)
It has also been described as' amenity damage'. - 18Can inteference with television signals be considered 'amenity damage'?No. Hunter v Canary Wharf the court refused to recognise a claim for interference with television reception caused by the erection of a large tower block. This decision was also based on the fact that nothing had been emitted from the defendant’s land.
- 19Is pure economic loss recoverable in a claim of nuisance?No, only consequential economic loss.
- 20The claimant must show that the nuisance they are complaining of constitutes unlawful interference with his land or his use or enjoyment of the land. What does ‘unlawful’ mean in this context?It means 'unreasonable' rather than 'illegal'. It doesn't have to be a criminal act.
- 21What does reasonable/unreasonable mean in this context?“... a balance has to be maintained between the right of the occupier to do what he likes with his own, and the right of his neighbour not to be interfered with...but it may broadly be said that a useful test is perhaps what is reasonable according to the ordinary usages of mankind living in society, or more correctly in a particular society.” Sedleigh Denfield v O’Callaghan [1940]
- 22Give 6 factors that are relevant when considering whether, on the facts, unlawful interference can be found. Remember, these are not defences, but simply factors to aid the court when determining whether the defendant's use of his land is reasonable.1. Time and duration. The time of day and duration of the purported nuisance.
2. Character of the locality. ""…what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey"" (Sturges v Bridgeman). Note: the character of the locality can never justify property damage, so is not relevant to that damage.
3. Abnormal Sensitivity on the part of the claimant.
4. Malice on the part of the defendant.
5. Defendant's lack of care.
6. Excessive behaviour. - 23If an activity has been given planning permission, does that mean, automatically, it cannot be considered a nuisance?No, the offending conduct can still be considered a nuisance. Planning permission does not determine private rights and therefore planning permission is normally of no assistance to the defendant in private nuisance claims. However, planning permission CAN change the character of a locality, for example, from residential to business use. See Coventry v Lawrence [2014] and Watson and others v Croft Promo-Sport [2009].
- 24The terms of planning permission can help the courts detirmine whether the defendant is using their land reasonably. What does this mean?If the planning permission allowed the property owner to drill between 9:30am and 4:00pm, and the drilling had to be limited to a certain decibel level, and the property owner kept within those stipulations, this could help the court to determine whether they were using the land reasonably.
- 25If a person is abnormally sensitive, how does this affect their claim?If the activity would not constitute a nuisance to a normally sensitive person, then their claim would fail. If, however, it would constitute a nuisance to a normal person, then they are able to claim for the full extent of their sensitivities. Robertson v Kilvert [1889]
- 26What approach are courts taking more recently viz. abnormal sensitivity? Case.Foreseeability.
Network Rail Infrastructure v CJ Morris [2004]
Facts: CJ Morris sued Network Rail for interference caused to electric guitars in a studio by electric lines.
Held: Buxton LJ argued that if someone is abnormally sensitive, that sensitivity would not be foreseeable. He said foreseeability would be a better test. Foreseeability not found in this case, but Robinson disapproved. - 27What is 'malice' in the context of nuisance?If the defendant can show legitimate reasons for using their land in a way that causes the purported nuisance, they may be able to defeat the claim. If, however, there is no purpose to the activity other than to annoy the claimant, nuisance will usually be found.
Christie v Davey [1893]
Facts: the parties lived next door to one another in a semi-detached house. Mrs Christie was a music teacher and throughout the day music pervaded the defendant’s house. This irritated the defendant who responded by making noise himself; beating trays, shouting and hitting the wall when the music was playing.
Held: The defendant’s noise was held to be excessive and unreasonable given it was made deliberately and maliciously for the purpose of upsetting the claimant. It was not a legitimate use of the land. Mrs Christie was granted an injunction, restraining the defendant from creating any sounds in his house with the purpose of annoying the claimant. - 28If the defendant demonstrates a lack of care, what impact will that have on a claim?It will work in the claimant's favour. Reasonable care and skill may take the form of, for example, restricting the hours during which work is done, limiting the amount of particular work within a particular area etc..
- 29There are two further factors that do not relate directly to the defendant's private use of his land, but may aid the court in finding a defendant's behaviour reasonable.1. Public Benefit.
2. Moving to the nuisance. - 30In practice, how much weight have courts given the factor of public benefit?Very little. In cases involving restaurants, critical infrastructure works, even defence of the rhelm, courts have been very slow to make the individual claimant bear the cost of the public benefit. Take the following case:
Bellew v Irish Cement [1948]
Held: an Irish court placed the interests of the individual over the public good when it ordered the closure of a cement works causing a nuisance, despite the fact that it was the only cement factory in Ireland and building was an urgent public necessity at the time! - 31If the claimant has 'moved to the nuisance' will that impair their claim?In general, no. If the claimant is using the land for the same purpose as their predecessor in title, 'moving to the nuisance' will not defeat the claim. If, however the claimant changes the use of the land, such that an activity becomes a nuisance, the defendant may object successfully to the claim (Sturges v Bridgman obiter).
- 32Name 6 defences.1. 20 years prescription.
2. Statutory Authority.
3. Violienti.
4. Contributory Negligence.
5. Acts of a third party.
6. Acts of God. - 33DEFENCES: What is '20 years prescription'?If the defendant’s activity has been an actionable nuisance for 20 years or more but no such action has been taken, the defendant will have earned the right to continue to commit the nuisance. Note it is the length of time that a claimant could have complained that is crucial, not the length of time that the activity has been ongoing. It is not enough to show that the activity or noise had been carried on for 20 years, the defendant must establish that the activity has created a nuisance for 20 years or more. Note that the 20 years does not have to be continuous. Sturges v Bridgman.
- 34DEFENCES: What are the circumstances in which 'Statutory Authority' can act as a defence?If the defendant has exercised due care, and the nuisance is an inevitable consequence of carrying out an activity under statutory authority, then the claim will be defeated. Note, statutory authority means directly under an act of parliament, and not a license from a government body with the statutory authority to provide such permissions (E.g. a license to dump waste or planning permission).
Allen v Gulf Oil Refining [1981]; Wheelerv JJ Saunders Ltd; Barr v Biffa Waste Services Ltd - 35DEFENCES: How does the defense of 'violenti' operate in claims of nuisance?If the claimant specifically agrees to the defendant causing the nuisance then that consent will be a defence.
Miller v Jackson, Pwllbach Colliery v Woodman [1915],and Kiddle v City Business Properties [1942]. - 36DEFENCES: Will a land owner be held liable for the activities of 3rd parties on his land?Generally, no, unless it would be reasonable to put a stop to it.
- 37DEFENCES: Will a land owner be held liable for the activities of 3rd parties on his land?Generally, no, unless it would be reasonable for the defendant to have remedied the situation.
- 38Give 3 remedies available for private nuisance.1. Damages (available for property damage, Sensible Personal Discomfort and consequential loss).
2. Injunction.
3. Abatement. - 39What is the main remedy provided for nuisance?Injuction. This will be, prima facie, the remedy awarded.
- 40There are two types of injuction. What are they?Partial injuction and full injuction.
- 41In Watson v Croft-Promo Sport [2009], the Court of Appeal held that damage sshould only be awarded in lieu of an injunction in ‘exceptional circumstances’. They gave four 'tests’ which, if satisfied, would allow an award in damages, instead of an injunction. What are they?(1) whether the injury to the claimant’s legal rights was small.
(2) whether the injury could be valuedin money.
(3) whether the injury could be adequately compensated by payment.
(4) whether it would be oppressive to the defendant to grant an injunction. - 42In Coventry v Lawrence, the Supreme Court took a different approach to remedes than that in Watson. How was it different?Although they confirmed that an injuction should be available prima facie, they held that the decision to award damages in lieu should be at the court's discretion, and should not be limited to 'four factors'. Public interest might be a consideration, or whether an injuction might cause job losses, and whether planning permission had been given.
- 43What is abatement?Abatement is a 'self help' remedy - the claimant may enter the land of the defendant to take steps to curtail the nuisance. They must not remove anything from the defendant's property. Notice will normally be given, unless it is an emergency. Legitimate abatement will be a defence to a claim of trespass.
- 44What is public nuisance?Public nuisance is a crime, very occasionally a tort, and includes “...acts or omissions of the defendant that materially affect the reasonable comfort and convenience of life of a class of Her Majesty’s subjects" (Attorney General v PYA Quarries [1957]). They are extremely varied, but can include: noise, polution, public health issues, and most commonly obstruction of Her Majesty's Highway. Much public nuisance is covered by statute, such as the Environmental Protection Act 1990, and various highways legislation.
- 45Who can sue? Three classes of claimant.1. An Individual.
2. A local authority.
3. The Attorney General. - 46Under what circumstances can an individual sue under public nuisance?Very rare. Only if they have suffered 'special damage'. Note that, unlike private nuisance or Rylands v Fletcher, the claimant in public nuisances need not have an interest in the land affected.
- 47Under what circumstances can a public authority sue under public nuisance?A public authority can sue on its own behalf if it has suffered particular damage, or on behalf of local inhabitants. When bringing action on behalf of residents, injunction is the only remedy allowed.
- 48When will the Attorney General sue?If no individual action is forthcoming (e.g. because no one has suffered special damage), a 'relator', a representative of the affected class, will ask the Attorney general to act on their behalf. When suing on behalf of a class, injunction is the only remedy available.
- 49If the act in question is an omission, why might a claimant prefer to bring an action in public nuisance rather than negligence?In negligence, omissions are a problematic category, and obtaining a remedy can be difficult, however, in public nuisance, claims brought for omissions are as likely to succeed as claims for acts.
- 50For a claim to be brought in public nuisance, does the offending activity have to be ongoing, or can it be a one off event?Unlike private nuisance (generally), claims can be brought for one off events.
- 51What is meant by a 'class'?"In R v Rimmington [2005] the court held that a ‘class’ referred to a ‘section of the public’ or ‘the community’ or ‘a significant section of the community’. A class also has to suffer a ‘common injury’, i.e. be affected at more or less the same time and in the same location.
There is no exact number that needs to be affected - the impact just needs to be sufficiently widespread." - 52What losses are actionable in public nuisance?"1. Property damage.
2. Personal injury (unlike private nuisance).
3. Pure Economic Loss (unlike private nuisance).
4. Annoyance or irritation." - 53All the defences available for private nuisance are also available for public nuisance, except one. Which one and why?20 years prescription. Because public nuisance is a crime. You cannot accede to a crime.
- 54Some examples of public nuisance.A pop festival: Attorney General of Ontario v Orange (1971)
Blocking a canal:Rose v Miles (1815)
Picketing on the highway: Thomas v NUM [1985]
Golf balls being hit onto the highway: Castle v St Augustine’s Link (1922)
An ‘acid house’ party: R v Shorrock [1993]
Defecating pigeons: Wandsworth London Borough Council v Railtrack [2001]
Carrying waste in uncovered vehicles: Corby Group Litigation v Corby District Council [2009] - 55What is the rule in Rylands v Fletcher?Rylands v Fletcher is a subcategory of private nuisance. It is an exception to the general rule that one off events are not actionable under private nuisance. Where there has been an escape of a dangerous thing in the course of a non-natural use of land, the occupier is liable for damage to another as a result of the escape.
- 56In Rylands v Fletcher, does fault have to be proven?No. Liability exists, irrespective of whether the defendant is at fault (i.e. it is a tort one of strict liability).
- 57In Rylands v Fletcher, does a loss have to be proven?Yes.
- 58What kinds of loss can be claimed for under Rylands v Fletcher?Property damage and consequential economic loss.
- 59Beyond the loss, there are 5 elements to a Rylands v Fletcher claim. What are they?1. Brings something onto the land, and accumulates it there.
2. Anything likely to do mischief (if it escapes).
3. It must escape.
4. The specific harm is foreseeable.
5. Non-natural use. - 60Would brambles that overgrow and escape from land be covered under the rule from Rylands v Fletcher?No, because they were not BROUGHT ONTO THE LAND by the defendant.
- 61Give some examples of substances 'likely to do mischief' if they escape.Acid: Rainham Chemical Works v Belvedere Fish Guano [1921]
Explosives: Read v Lyons [1946]
Colliery Spoil: AG v Cory Bros [1921] - 62A fire that accidentally starts in a pile of tyres accumulated on the defendant's land spreads to the claimant's land. Has there been an 'escape'? Why?No. Because the 'dangerous substance', the tyres, are not the thing that has escaped, but the fire, a different thing.
- 63An oil spill occurs on the defendants land, and catches fire. It spreads to the claimant's land. Has there been an escape? Why?Possibly. The fuel and fire maybe seen as components of the same 'substance'.
- 64What if the defendant starts a fire intentionally on their land (e.g. an unusually large bonfire), and this spreads to the claimants land? Could this amount to an escape?Yes, the fire could be classified as the 'dangerous substance' brought onto the land.
- 65What is the difference between 'anything likely to do mischief' and 'foreseeability of harm'?The former refers to the substance accumulated on the land, and the latter to the specific harm done. The harm must be of a type foreseeably related to the substance.
- 66What exactly must be foreseeable? Just the harm, or the escape also?Just the harm. What is unique about Rylands v Fletcher within the tort of nuisance, is that it is a tort which provides remedy even if the escape of the substance was not foreseeable.
- 67What does 'non-natural use' mean?It does not mean that the substance is not naturally occurring, just that the manner of its use is not normal. E.g. Intentionally blocking a sink and causing water damage to an adjoining property would constitute non-natural use. Maybe substitute it for 'abnormal use' in your mind. What was unacceptable at one stage in history may be common place and acceptable at a later date.The fact that times change is perhaps best illustrated by the case of Musgrove v Pandelis [1919], where it was held that storing a car with a full tank of petrol in a garage was a non-natural use of land. Musgrove was not subsequently followed in Cammidge v Young [1997]. Similarly, in Rainham Chemical Works v Belvedere Fish Guano [1921], an explosives factory was considered to be a non-natural use of land, but the opposite was held in Read v Lyons [1946] as the explosion happened during World War II. During wartime operating a factory to produce weapons was an ordinary use of land.
- 68Is storing large amount of chemicals on land considered 'non-natural use'? Case.Cambridge Water v Eastern Counties Leather [1994]
Facts: The defendants operated a leather manufacturing business. Part of the tanning process involved using a particular chemical solvent called PCE. Over many years, this chemical seeped through the concrete floor contaminating the water table below. The polluted water was detected by the claimant’s pumping station approximately 1.3 miles away. As a result of this, the claimant water company was forced to relocate their pumping station at a cost of over a million pounds.
Held: Storing the chemicals on the land was considered 'textbook non-natural use', however, the House of Lords regarded the damage as not being foreseeable and, therefore, too remote. Liability would only arise if the damage caused was either foreseen or ought to have been foreseen by the defendant. - 69Can storing a small amount of something be considered natural, and a large amount unnatural?Yes. See Colour Quest in which a large about of oil was considered to be unnatural despite it being an industrial property.
- 70What defences are available to Rylands v Fletcher?"1.Consent (or Common Benefit) - If the claimant has agreed to the accumulation of the material by the defendant, there will be no liability under the rule. Consent can be implied if the substance has been accumulated for the common benefit of the claimant and defendant
2. Act or Default of the Claimant - If the escape has been caused wholly by the claimant’s actions, then he will be unable to complain. If the claimant’s acts were merely contributory, there may be contributory negligence.
3.Statutory Authority - The courts will examine whether a breach of the rule in Rylands v Fletcherwas authorised by statute. If so, this will be a defence.
4.Act of a Third Party - The defendant will escape liability if he can show that the situation arose through the unforeseeable act of a stranger over whom he had no control. The defence will only operate if the defendant has not been negligent.
5.Act of God- This is concerned with the situation where the escape is not caused by human intervention but by a natural occurrence. Not every natural occurrence will be an Act of God and the defence is re
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