SQE 1 - Tort Law (Nuisance)

Summarise nuisance

Nuisance can either be:

Private → protects individuals in the employment of their property/land

Public → Protects a class of people in the enjoyment of a common right

What is the tort of nuisance?

Nuisance is a tort which deals with interferences with land.

What are the three types of nuisance?

1. Private

2. Rule in Rylands v Fletcher → special form of private nuisance

3. Public nuisance

What is private nuisance?

Private nuisance is an unlawful interference with a person's use or enjoyment of land. For example, tree roots causing damage to neighbour's property.

What are examples of private nuisance?

- Smells

- Physical damage to land or buildings

- Activities taking place on the land

- Natural features e.g. trees

- Noise

- Fumes

- Dust

Who can sue in private nuisance?

Only those with exclusive possession rights to the land or property, ie the owner or occupier (tenant, if in occupation).

e.g. Guests at a hotel disturbed by loud music from bars close by are unable to pursue a claim in private nuisance as they are only guests and only occupy the hotel room and have no right to exclusive possession of the room.

Who can be sued in private nuisance?

1. Creator of the nuisance;

2. Occupier of the land from which the nuisance originates; and

3. A landlord that authorises a nuisance

What are the requirements to bring a claim of private nuisance?

There must be interference with the claimant's use and enjoyment of land and that interference must be unlawful.

What are the different types of unlawful interference?

- Encroachment onto a neighbour's land

- Direct physical injury to a neighbour's land

- Interference with enjoyment of land

What is unreasonable/unlawful interference?

The use of land must be unreasonable in order to successfully claim private nuisance. If interference with the claimant's enjoyment of their land is a forseeable consequence of D's use of their land, that interfereance will be unreasonale and D will be liable.

What are the relevant factors the courts look into when determining if use of land is unreasonable?

1. Duration/frequency of the nuisance

2. Character of the neighbourhood

3. Sensitivity of the claimant

4. Public benefit

5. Malice of the defendant

What is Duration/frequency of the nuisance?

- Unreasonable/unlawful interference relevant factors

When is this factor relevant?

- Always taken into consideration

Duration and frequency is important. The nuisance must be continuous. The longer the nuisance has lasted the more likely the court will find it unreasonable.

Example case:

In De Keysers Royal Hotel Ltd v Spicer Bros pile driving at night (to build foundations for a new building), even though a temporary operation, was sufficient for the court to find the interference unreasonable and constituting a private nuisance.

2. Character of the neighbourhood

When is this factor relevant?

Sometimes (depends upon types of claim)

If the activity being carried out is not in keeping with the area at the court will find it unreasonable.

Example case:

In Hirose Electrical UK Ltd v Peak Ingredients the court found that the strong smell of food additives from the defendant's premises were not an actionable nuisance as the premises were situated on a light industrial unit and the claimant (an electrical manufacturer) had to tolerate the odours due to the nature of the area.

3. Sensitivity of the claimant

When is this factor relevant?

Sometimes (if relevant to claim)

Reasonable use of land does not become unreasonable due to the fact that it affects a sensitive user of the land/property.

Example case:

In Robinson v Kilvert, the heat from D's manufacturing process damaged the claimat's (heat-sensitive) paper stored on the ground floor of the same building. The court held that the damage was dye to sensitivity to the claimant's paper not the D's trade.

4. Public benefit

When is this factor relevant?

Rarely considered

The court may allow an activity that constitutes a private nuisance to continue if the public interest in the continuation outweighs the claimant's right to have the acticity stopped.

Example case:

In Hatton v UK the court referenced the fact that allowing night flights (which disturbed local resident near Heathrow airport) was beneficial to the countr's economy.

5. Malice of the defendant

When is this factor relevant?

Sometimes (if relevant to the claim)

If the court find that the defendant is committing a nuisance due to unreasonable malice or ill will the court is likely to find the interference unreasonable.

Example case:

In Christie v Davey, the claimant was a music teacher and her family also enjoyed playing musical instruments. The defendant neighbour took to making noise (shouting, banging trays) whenever the claimant played music. The court found that the defendant is liable in private nuisance due to the fact he had acted only to annoy the claimant.

Generate a question

Private nuisance is only actionable if the claimant suffered injury, harm or damage. If the claimant's property or land suffered physical damage the court will find that the interference is unreasonable and the claim will succeed.

Can a claimant bring a claim for personal injury by private nuisance?

No personal injury is not a type of harm covered by private nuisance (Hunter v Canary Wharf). Rather the claimant will have to bring a claim in negligence.

Residents of an area of London that underwent property development experienced interference with their television signals due to the developers bilding a 235m tower block in the area. The claimants were occupants of home in the area and included family relatives, lodgers and other residents that did not have exclusive possession of the properties affected.

Do the claimants without a proprietary interest have the right to claim for private nuisance and is interference with television signals with the enjoyment of land?

These are the facts of Hunter v Canary Wharf. The Court considered that only those with a proprietary interest were entitled to bring a claim in private nuisance.

Children, lodgers and others without a proprietary interest were unable to bring a claim. (The court recognised that a wife with a beneficial interest in the family home would have a proprietary interest in the property.) Further, that in order to succeed the interference had to emanate from the defendant's land. As the defendant's building only got in the way of the television signal it fell short of emanating from the land. The claim failed.

What is public nuisance?

Public nuisance is an act or omission that mateirally affects the reasonable comfort and convenience of life of a group or class of people.

Public nuisance is both a tort and crime involving personal injury or harm suffered by the community or a section of the community.

What are the requirements for a successful public nuisance?

In order to successfully claim, the nuisance must affect:

- a class of people; and

- the claimant must have suffered special damage

What is the difference between public nuisance and private nuisance?

This relates to 'who' is affected y the nuisance.

-In private nuisance it will be those with exclusive proprietary interests (eg, owners, tenants)

- Public nuisance it will be a group/class of citizen (eg local residents)

Who typically brings a claim for public nuisance?

Most claims are brought on behalf of a class of people by the Attorney-General (A-G).

What is class of people?

- Public nuisance requirement

The courts has not defined the number of people who must be affected by the nuisance but will look at the at the facts of each case, and then decide whether the nuisance has affected a cross-section of the public.

What are groups that the courts have held to be a class of people?

- Local community

- Groups with common characteristics

- Highway users

- Wider impact on public

What is suffered special damage?

- Public nuisance requirements

A claim in public nuisance will only succeed if the inconvenience or interference suffered by that class of people is over and above the inconvenience caused the class.

What is an example of a case where the class of people were groups with common characteristics?

Babies suffering birth defects due to dispersal of toxic chemicals from a landfill site

Corby Group Litigation v Corby District Countil [2009]

- Highway users

Highway users in the vicinity of golf club's 13th hold from which golf balls often strayed, hitting road users.

Castle v St Augustine's Link (1922)

- Wider impact on public

Emergency services diverted from the public to answer the defendant's many hoax calls.

- Lowrie [2005]

Can many specific individuals qualify as a group or class of people?

No.

The defendant posted 538 racially offensive and obscene letters to people throughout the country.

Did the 538 individuals qualify as a group or class of people?

These are the facts of R v Rimmington [2005]. The court found that the defendant's conduct was aimed at many individuals, not a community or group, and the claim in public nuisance failed.

What is an example of a case where the class of people were the local community?

Locals affected by quarry blasting.

Attorney-General v PYA Quarries [1957]

The claimant was hit by a golf ball and injured. The golf balls leaving the golf course and landing on the high street were a regular occurrence and this affected a section of highway users.

Was the claimant able to claim in public nuisance?

These are the facts of Castle v St Augustine's Link (1922). Because the claimant has been affected over and above highway users as he was injured by the golf ball he was able to successfully claim in public nuisance.

What are the type of damage can you claim for with public nuisance?

1. Damage to property

2. Personal injury

3. Economic loss

Who can sue for public nuisance?

- Anyone affected by the public nuisance can sue - they do not need to have an interest in land.

- Attorney-General → Public nuisance is a crime and the A-G will bring the action on behalf of the affected class of people.

- Local authority → A local authority has statutory power to bring a claim on behalf of its residents

- An individual → In tort the damage suffered by the individual must be over and above that suffered by the class.

Who can be used for public nuisance?

- The creator of the nuisance

- The person responsible for the nuisance

What are the general defences available to private and public nuisance?

1. Consent (voluntary acceptance of the nuisance)

2. Contributory negligence

What are the specific defences available to private and public nuisance?

1. Prescription

2. Statutory authority

3. Act of God

4. Unforeseeable act of stranger

5. Necessity

6. Planning permission

7. Claimant came to nuisance

9. Publix benefit

10. Contributions to nuisance

What is prescription?

- Specific defences available to private and public nuisance

This is a defence only available to private nuisance.

If the unreasonable user of the land has been using the land in an unreasonable manner for more than 20 years to claim will fail. Time runs from when the claimant became aware of the activity.

What case is an example of prescription?

Sturges v Bridgman:

- The defence of prescription failed as time runs from when the claimant became aware of the activity. A doctor's consulting rooms were disturbed by the noise from the defendant's confectionary business. Although the confectioner had worked at his premises for more than 20 years, the activity only became a nuisance when the doctor extended his premises and his examination rooms were situated closer to the confectioner's premises.

What is the effectiveness of prescription?

Likely to succeed:

- Had the doctor in Struges put up with the noise for 20 years and then sought to claim, D could have defended the claim on the basis of 20 year prescription.

What is statutory authority?

- Specific defences available to private and public nuisance

If the activity has been authorised by legislation of the claim will fail.

What case is an example of statutory authority?

In Allen v Gulf Oil Ltd, an oil company wanted to extend their oil refinery in Wales and the claimant claimed against them in public nuisance. However, the extension was expressly permitted by the Gulf Oil Refinement Act 1965 and the oil company successfully defended the claim as they had statutory authority for their actions.

What is the effectiveness of statutory authority?

Likely to succeed.

3. Act of God

If the nuisance is due to an act of nature or an act of God, the claim may fail. If the defendant knows about the nuisance and allows it to continue or has had a hand in creating the nuisance the claim may succeed.

What case is an example of Act of God?

Greenock Corporation v Caledonian Railway:

- D constructed a children's paddling pool which caused the claimant's railway to flood when there was an unprecedented heavy rainfall. D argued that the flooding was due to an act of God (heavy rainfall). The court disagreed and found that the construction of the paddling pool had obstructed the natural flow of the water and the defendant was liable.

What is the effectiveness of Act of God?

Likely to succeed:

- Had D in Greenock not constructed a paddling pool and the heavy rainfall had flooded the railway this would be viewed as an 'act of God'.

What is unforeseeable act of stranger?

- Specific defences available to private and public nuisance

If the nuisance is due to the act of a stranger or trespasser the claim will fail.

What case is an example of unforeseeable of a stranger?

Barker v Herbert:

- D owned a vacant land but had erected railings around the land to prevent people accessing it. Unbeknown to the defendant, children removed some of the railings which allowed the claimant to gain access. The claimant was injured on the land. The defendants were held not liable as they had inspected the premises a few days prior to the incident and the railings were intact.

What is the effectiveness of unforeseeable act of a stranger?

Likely to succeed.

What is necessity?

- Specific defences available to private and public nuisance

If the defendant's actions are reasonable and there is an imminent threat to life or limb (possibly property) the claim will fail.

What case is an example of necessity?

Southport Corporation v Esso Petroleum:

The defendants (oil tank owners) discharged oil into an estuary in an attempt to prevent oil tanker breaking up, which would put the lives in danger. The defendant were not liable in private nuisance for the oil spill due to the imminent threat to life.

What is the effectiveness of necessity?

Likely to succeed.

What is planning permission?

- Specific defences available to private and public nuisance

The granting of planning permission does not make activity lawful (local authority decisions cannot prevnt the right to claim nuisance).

What case is an example of planning permission?

Wheeler v JJ Saunders:

The D had been granted planning permission to build pig units on his land. The court found that the smell and noise constituted a nuisance irrespective of any planning permission to defendant had been granted.

What is the effectiveness of planning permission?

Unlikely to succeed.

What is claimant came to the nuisance?

- Specific defences available to private and public nuisance

The court is unlikely to accept a defence that the claimant has moved to an area where the activity is taken place.

What case is an example of claimant came to the nuisance?

Coventry v Lawrence:

The Claimants had operated a race track where car racing in some forms had taken place for over 30 years (causing noise and fumes). D's argument that the claimant moved to the nuisance years after the track had been established was rejected by the court.

What is the effectiveness of claimant came to the nuisance?

Unlikely to succeed

What is public benefit?

- Specific defences available to private and public nuisance

If the nuisance is a by-product of an activity which benefits the community the court may be reluctant to grant an injunction stopping the activity but may instead offer an alternative remedy of damages.

What case is an example of public benefit?

Coventry v Lawrence:

The court found that the noise and fumes from D's race track was a nuisance but considered a public benefit of its existence (visitors, boosting economy, locals having employment) and did not order the activity to stop (injunction) but awarded the claimant compensation (damages).

What is the effectiveness of public benefit?

Unlikely to succeed but may be reflected in remedy ordered by the court.

What is contributors to nuisance?

- Specific defences available to private and public nuisance

It is no defence to a claim that had defendant's activity occurred in isolation it would not amount to a nuisance.

What is an example of contributors to nuisance?

In a residential town centre area with a street of many nightclubs an argument from one nightclub owner that loud music emitting from their nightclub is not a nuisance if it was considered in isolation without the effect of the other many clubs would fail. The court would not accept that the nuisance only occurs because of the other many nightclubs playing loud music too.

What is the effectiveness of contributors to nuisance?

Unlikely to succeed.

What remedies are available for private and public nuisance?

1. Injunctions to prevent the activity

2. Damages to compensate the claimant affected by nuisance

3. Abatement

What are injunctions?

- Remedy for nuisance

An injunction is a court order which prevents the activity causing the nuisance to continue. Failing to comply with an injunction is contempt of court which could lead to a fine or imprisonment for defendants.

What are the different types of injunctions available?

1. Prohibitory

2. Mandatory

3. Quia timet

4. Interim/final

What are prohibitory injunctions?

Prevents the defendant from doing the activity causing the nuisance and is the most common remedy.

What are the circumstances where a claimant will be awarded an injunction?

A claimant will only be awarded an injunction where damages would not be deemed an appropriate remedy.

What are mandatory injunctions?

Compels the defendant to rectify the situation that has been caused by the nuisance. These injunctions are used only in certain circumstances.

What are Quia timet injunctions?

Obtained before the activity amounting to a nuisance can take place (eg music festival). Only granted where:

- high likelihood the nuisance will occur

- the activity would cause damage and disruption to the claimant

- the defendant will not stop their intended course of action without an injunction

What are interim/final injunctions?

An interim injunction is a temporary measure which prevents the defendant from continuing with the activity causing the nuisance until such time as the court can consider the matter fully and if appropriate order a final injunction.

What does the remedy of nuisance seek to do?

Any remedy for nuisance seeks to balance the rights of the parties which may require a compromise between users of neighbouring land.

The defendants run a water sports company close to the claimant's property. The claimant built a house at the side of the lake and complains when the noise and frequency of the motorboat racing events increase on the basis they are interfering with her enjoyment of her land. The court accepts that the noise is a private nuisance.

Should the court grant an injunction which would prevent all water sports from taking place or should the court order damages to the claimant to compensate her for the nuisance?

These are the facts of Keenaway v Thompson. The court ordered an injunction which did not prohibit the activity in its entirety but limited the defendant club's racing activities in each year and restricted the noise levels of the motorboats. In doing so the court balanced the rights of the claimant with the rights of the defendant. An injunction preventing all motorboat activity would have made the water sports centre unworkable.

As injunctions are an equitable remedy, what must the claimant show in order for the court to grant one?

The claimant must show they have acted promptly, not encouraged or agreed to the nuisance and the defendant must be able to comply with the injunction.

What are damages?

- Remedy for nuisance

Damages (monetary compensation) can be awarded by the court for any losses suffered by the claimant up until the date of trial.

The court does have limited power to order damages for future losses.

The court will award damages to:

- physical damage to land (e.g. damages to building exteriors due emittance of smoke/chemicals)

- in relation to personal discomfort/inconvenience (eg being unable to use your garden due to smell/dust)

What are the scenarios where the courts are likely to use their discretion to refuse injunctions?

The court exercises its discretion and is likely to reuse an injunction and award damages where the harm suffered by the claimant is:

- small, and

- can be quantified in financial terms, and

- can be compensated by damages, and

- it would be oppressive to grant an injunction

What are the scenarios where the courts are likely to use their discretion to award injunctions?

The court is more likely to award damages where compensation would remedy the situation. Not all of the four tests (small, financial quantifiable, compensated by damages, oppressive to grant an injunction0.

The court will also consider whether the granting of an injunction would affect the public interest. e.g. this would be where the defendant is an employer of many employees and an injunction would effectively mean the business has to close.

What is abatement?

- Remedy for nuisance

Abatement relates to the claimant rectifying the nuisance by removing or stopping the nuisance from taking place.

e.g. a claimant whose garden is being encroached upon by a neighbour's tree roots or branches. The claimant would be able able trim the branches/tree roots as long as doing so reasonably.

Anything undertaken which is unreasonable could be viewed as a trespass.

What is the rule in Rylands v Fetcher?

This is a specialised form of private nuisance. It concerns a situation where an escape of non-natueral things from a person's land causes damage to property owned by somebody else.

The occupier of the land from which the non-natural thing escaped will be liable for damage, irrespective of whehter or not they were actually at fault.

What are the facts of Rylands v Fletcher?

Involves a claim brought against the defendant mill owners who had engaged experienced and competent independent contractors to build a reservoir to supply water to their mill. The contractors built the reservoir over old mine shafts. Due to the weight of the water the mine shafts collapsed and flooded the claimant's colliery. The claimant could not succeed in private nuisance as the defendant had not been negligent on the basis that they had instructed competent contractors.

The court found the defendants liable on the basis they that they had brought and collected something 'non-natural' onto their land which foreseeably had caused damage once escaped.

What are the elements of the Rylands v Fletcher rule?

1. Did the defendant bring and collect something onto the land likely to do mischief?

2. Is the collection brought onto the land 'non-natural'

3. Is there a possibility that damage would occur if the thing brought onto the land escaped?

4. Did the escape cause damage to the claimant's land?

What is did the defendant bring and collect something onto the land likely to do mischief?

- Rylands v Fletcher rule element

D must bring and collect something on their land which is likely to do a mischief The court have considered fumes, vapours, cattle and sewage to fall into this category..

Is there a possibility that damage would occur if the thing brought onto the land escaped?

- Rylands v Fletcher rule element

The thing collected on the land must be likely to do mischief it escapes. The thing must also move from land occupied/controlled by the defendant to land not occupied/controlled by the defendant.

e.g.: Stannard (t/a Wyern Tyres) v Gore:

- D stored tyres on their land which caught fire. The fire spread to the claimant's premises The claim failed as the court found that the 'thing' brought onto the land were the tyres (which were not mischief if they escaped) and not the fire which started or increased the thing.

Did the escape cause damage to the claimant's land?

- Rylands v Fletcher rule element

The thing collected on the land does not in itself have to be dangerous, but it must be reasonably foreseeable to cause damage if it escapes.

This principle was introduced in Cambridge Waters Co Ltd v Eastern Counties Leather:

- D's use of solvents in their tanning process for over 20 years had polluted the water used by the claimants, causing the claimant to incur the cost of relocating the source of their water (well). The claim failed as the court held that it was not foreseeable that the chemicals would seep through the land and pollute the water extracted by the claimants.

Is the collection brought onto the land 'non-natural'?

- Rylands v Fletcher rule element

The rule will not apply to things that are naturally on the land (eg trees, plants). The court takes into consideration the normal use of the land according to the standards of te day.

e.g. Transco Plc v Stockport:

- D's pipe leaked, causing an embankment to collapse. The collapse affected the claimant's gas pipe which required remedial work. The court found that the use of pipes to supply water was a normal use of the land and the claimant's claim failed.

What is the rule in Rylands v Fletcher concerned with, and what is an essential element of the tort?

This rule is concerned with rights and duties in respect of the occupier's land. An essential element of the tort is that there is an escape from the defendant's land.

The claimant is working for the Ministry of Supply during the Second World War and is required to inspect a munitions factory when a shell exploded and she is injured. There is no negligence on the part of her employer.

Is she able to claim under the rule in Rylands v Fletcher for the escape of the hazardous material?

These are the facts of Read v j Lyons. The court found that a shell exploding did not qualify as an escape of anything dangerous from the defendant's premises to the claimant's premises.

What are the general defences available for the rule in Rylands v Fletcher?

1. Consent (voluntary acceptance of the nuisance)

2. Contributory negligence

What are the specific defences available for the rule in Rylands v Fletcher?

1. Statutory authority

2. Act of God

3. Unforeseeable act of a stranger

What are the remedies available under the rule in Rylands v Fletcher?

If a claim succeeds the claimant will receive damages. A claimant cannot bring a claim for personal injury.