Law of Tort - Nuisance
The Law of Tort: Nuisance
Introduction to Nuisance
The tort of nuisance covers a wide range of conduct, making it difficult to define precisely.
Examples of nuisance include:
Offensive smells
Hoax bomb warnings
Excessive noise
Cockroach infestation
Pigeon droppings
Vibrations causing structural damage
Keeping a house of ill-repute
Definition: An act or omission that amounts to:
An unreasonable interference with
Disturbance of, or
Annoyance to,
another person in the exercise of their rights regarding their property.
Professor Fleming describes it as a "catch-all" for various offenses.
Two types of Nuisance under Irish law:
Public nuisance
Private nuisance
Public Nuisance
Definition: An act or omission that materially affects the reasonable comfort of the public.
Example: Unlawfully blocking a motorway.
Thomas v. NUM [1986] Ch 20
Striking miners blocked a public motorway.
Held: Unlawful interference with the public's right to use the motorway.
Normal, everyday obstructions on a public motorway do not amount to public nuisance.
Herring v. Metropolitan Board of Works [1865] 19 CBNS 509
Carts and wagons stopping at shops for loading/unloading.
Building, rebuilding, or repairing houses abutting public highways.
Public nuisance may also be created by carrying on a trade which causes discomfort to the general public.
AG v. PYA Quarries [1957] 2 QB 169
Blasting and quarrying operations caused a widespread nuisance.
Public nuisance is a crime and a tort.
Under Section 222 of the Local Government Act, 1972, the Attorney General (AG) may bring an action to end the nuisance.
Smith v. Wilson [1903] 2 IR 45: Only the AG can bring an action for public nuisance.
The AG represents the public interest and may seek an injunction.
Special or Particular Damage
Exception: A private individual may bring an action if they can show particular damage over and above that suffered by the public.
Examples of damage: Personal injury, property damage, financial loss.
Boyd v. Great Northern Railway [1895] 2 IR 555
A doctor was delayed by a level crossing keeper's negligence.
Succeeded in suing for public nuisance as he suffered particular damage because his time was of monetary value.
Smith v. Wilson [1903] 2 IR 45
An elderly farmer's route to market was obstructed.
Had to take a longer route and hire a car.
Held: Proven special damage and succeeded in his action.
Castle v. St. Augustine’s Links (1922) 38 TLR 615
Plaintiff struck by a golf ball from defendant's golf course and lost an eye.
Golf balls frequently cleared the boundary.
Held: Suffered special damage (damage to car) and succeeded.
Private Nuisance
Designed to protect private individuals in the enjoyment of their property.
Plaintiff must show that their interest, use, or enjoyment of land is adversely affected in an unreasonable manner.
A plaintiff must have an interest in the land affected.
Interest in the Land Affected
Cunard v. Antifyre [1933] 1 KB 551
Private nuisance involves interferences for a substantial length of time by owners or occupiers with the use or enjoyment of neighboring property.Private nuisance happens when someone's use or enjoyment of their property is significantly interfered with over an extended period by a neighbor.
Two forms of private nuisance:
Causes material or physical damage.
Interferes with the plaintiff’s use and enjoyment of property.
Dempsey v. Waterford Corporation [2008] IEHC 55
Facts: Sewage water influx under the plaintiffs' floor due to an old brick culvert; defendant was carrying out sewage renewal works nearby.
Held: The defendant was not negligent, as the council's duty of care did not extend to exploratory digging without a reasonable basis for suspecting the culvert's existence.
Referred to Clerk and Lindsell on Torts: Ignorance of nuisance is a defence unless due to omission to use reasonable care.
Omissions
Difficult to establish a claim based on a defendant’s failure to act.
Irish law: A defendant may be liable for damage caused by natural hazards if they knew or should have known of the risks but did nothing to prevent them.
Leakey v. National Trust [1980] QB 485
Facts: Topsoil slid from the defendant’s property onto the plaintiff’s, causing damage.
Held: In favor of the plaintiff based on the foreseeability of the damage, and the defendant was obliged to take action.
Lynch v. Hetherton [1991] 2 IR 405
Facts: Plaintiff’s car damaged by a tree falling from the defendant’s property.
Held: The defendant was not liable, as the tree’s internal rot was not obvious to a casual observer, and the farmer had inspected the trees prior to the accident.
O’Hanlon J noted a landowner's duty to take reasonable care to guard against damage from falling trees.
Active Conduct
Cases involving positive conduct: A stricter approach is adopted than cases involving a failure to deal with natural hazards.
Proving reasonable care will not be enough; the focus is on the effect of the conduct on the plaintiff's property enjoyment, balanced with the defendant's right to enjoy their property.
St. Helen’s Smelting Co. v. Tipping (1865) 11 HLC 642
Plaintiff’s shrubs damaged by fumes from the defendant’s copper smelting plant.
This amounted to a Private Nuisance.
Hoare & Co. v. McAlpine (1923) 1 Ch 167
Vibrations caused from blasting were held to amount to a nuisance.
Sedleigh Denfield v. O’Callaghan [1940] AC 880
Facts: Defendant created a ditch in an unwise position, leading to a blocked pipe and flooding on the plaintiff’s land after a storm.
Held: The defendant was found liable in Nuisance, as the defendant's agent maintained the ditch and should have realized the risk of flooding.
Interference with Use
If a defendant’s act substantially detracts from a plaintiff’s comfort or use of his/her land, the plaintiff may have an action in Private Nuisance.
However, not every interference constitutes a Nuisance; the court must balance the rights of both parties.
An act must be substantial and unreasonable to amount to Nuisance.
The concept of reasonableness is central.
Hanrahan v. Merck Sharpe & Dohme [1988] ILRM 629
Henchy J.: An occupier is entitled to the comfortable and healthy enjoyment of land to the degree expected by an ordinary, reasonable person in all circumstances.
Reasonableness is judged according to ordinary usages of society, per Lord Wright in Sedleigh-Denfield v. O’Callaghan [1940] AC 880.
Christie v. Davey [1893] 1 Ch 316: Whether conduct is unreasonable is a question of fact in each case.
Baxter v. Camden London Borough Council
Tuckey L.J.: In noise nuisance cases, the court considers the locality, age, and physical characteristics of the premises; occupiers of low-cost housing must tolerate higher noise levels.
Nuisance 'covers a multitude of sins, great and small’ and is determined on a case-by-case basis.
Factors Considered by Courts
Locality
The environment affects whether an activity is considered unreasonable.
Sturges v. Bridgman (1879) 11 Ch. Div 852
A confectioner's noise disturbed a doctor's consulting room.
Held: The confectioner was liable.
Emphasized that 'What would be a nuisance in Belgravia Square would not necessarily be so in Bermondsey'.
O’Kane v. Campbell [1985] IR 115
A 24-hour shop opened on a busy street corner and a quiet residential street.
Held: The shop's position affected the peace and quiet of the residential street so and was prevented from opening 12pm-6am.
Patterson v. Murphy [1978] ILRM 85
Costello J.: The standard is that of an ordinary reasonable person on a country lane in an agricultural area.
Defendant argued, unsuccessfully, that that plaintiff came to reside in a mining area and the standard of comfort appropriate to a mining area had not been breached.
Duration
The longer the interference, the more likely it's unreasonable.
Playing a song loudly briefly vs. repeating it all night.
Leeman v. Montague [1936] 2 All E.R. 1667
A rooster crowed for weeks in a residential area.
Held: This amounted to a Nuisance.
Bolton v. Stone [1951] AC 850
Cricket balls hit onto a motorway six times in thirty years.
Held: This did not amount to Nuisance.
Sensitivity
If damage is due to the plaintiff's hyper-sensitivity, it may not be a Nuisance.
Mullin v. Hynes, unreported, Supreme Court, November 13, 1972: Authority that an especially sensitive plaintiff cannot compel a neighbor to accommodate their needs.
Hatton v. UK (2003) 37 EHRR 28: ECtHR noted that noise sensitivity includes a subjective element.
Public Utility
If actions normally amounting to Nuisance are for the public good, the plaintiff may not have an action.
Miller v. Jackson [1977] QB 966
Cricket balls frequently bombarded the plaintiff’s garden.
Held: A Nuisance was committed, but an injunction to close the club was refused because cricket is a national pastime.
Malice
An act not otherwise a Nuisance may become one if done maliciously to annoy the plaintiff.
Christie v. Davey [1893] 1 Ch 316
The defendant banged dustbin lids during the plaintiff’s music lessons to cause noise.
Held: Constituted a nuisance due to malice.
Hollywood Silver Fox Farm v. Emmett [1936] 2 KB 468
The defendant ordered guns to be fired near the plaintiff’s silver fox farm to prevent breeding.
Held: An injunction was granted.
Public Convenience
Divergence of judicial opinion on whether courts should consider it.
The concept of public convenience in nuisance cases refers to the debate over whether courts should consider the broader public benefit or necessity of a defendant's actions when deciding if a nuisance exists and how to address it.
Bellew v. Cement Ltd. [1948] IR 61
Maguire C.J. expressed a negative opinion.
The defendant asked the court to consider the shortage of cement following World War II.
The Court refused to take public convenience into account.
Clifford v. Drug Treatment Centre Board [1998] WJSC- HC 763
A more civic-minded approach, considering society’s needs.
McCracken J. refused an injunction requiring the defendant to reduce drug addicts treated but prohibited increasing patient numbers.
Summary of Private Nuisance
An action may be brought where:
The plaintiff has suffered material damage to property.
The plaintiff’s right of enjoyment regarding property has been unreasonably interfered with.
The standard of care expected varies depending on the nature of damage.
Omission to deal with a natural hazard: Reasonable standard of care (akin to Negligence) i.e. should the defendant have known?
Nuisance caused by active conduct: The court examines whether the defendant’s conduct was unreasonable, regardless of reasonable actions by the defendant if the effect on the plaintiff was unreasonable.
The court considers competing interests and factors like locality, duration, etc.
Who can Sue for Private Nuisance?
Landowners and occupiers may sue.
Halpin v. Tara Mines [1976- 1977] ILRM 28 and Hanrahan v. Merck Sharpe & Dohme [1988] ILRM 629: Irish cases confirming an occupier may take action.
Hunter v. Canary Wharf Limited [1997] 2 AC 655 (House of Lords)
Law Lords refused to allow a licensee (non-exclusive possession) to sue for TV signal interruption.
Lord Hoffman noted courts will readily assume a wife's beneficial interest in the matrimonial home.
Malone v. Laskey [1907] 2 KB 141
Occupier’s wife injured by a falling bracket due to vibrations could not sue as she had no interest in the premises.
Irish courts have not adopted a restrictive approach.
Royal Dublin Society v. Yates [1998] WJSC-HC 14041
Molumby v. Kearns [1999] WJSC-HC 5619
McMahon & Binchy note O’Sullivan J’s preference for the “occupier of the land” test.
Pemberton v. Southwark London Borough Council [2002] 1 WLR 1672 (CA)
tolerated trespasser has the exclusive right to occupy premises for the period she remains. Therefore, the plaintiff had a right to proceed against the council.
Who may be Sued in Nuisance?
The creator of the Nuisance will be liable.
A landlord may be sued where they authorize the creation or maintenance of a Nuisance.
Goldfarb v. Williams & Co.27 [1945] IR 433
Authorization may be express or implied.
Liability was imposed on lessors of premises where the lessees created noise disturbances.
A landlord is liable if they let premises with the Nuisance on them or covenanted to repair but failed to do so.
An occupier may be sued in Nuisance if they create a Nuisance or their servants/agents/visitors do so with authorization.
Remedies to a Nuisance Action
Injunctions
Damages
Abatement
1. Injunctions
The main remedy is an injunction, prohibiting the defendant from continuing the nuisance.
Kennaway v. Thompson [1981] QB 88
Noise from powerboat racing was a Nuisance.
An injunction restricted events and noise.
Wignall, Death Knell to Nuisance, (2004) 154 NLJ 83: ‘Once a nuisance has been proved, an injunction will ordinarily follow…'.
Patterson v. Murphy [1978] ILRM 85
Costello J. recognized the court's discretion to award damages instead of an injunction.
Established principles for exercising discretion:
Plaintiff is prima facie entitled to an injunction.
Damages may be granted if injury is small, capable of being estimated in money, and adequately compensated by a small payment, and an injunction would be oppressive.
The conduct of the plaintiff may disentitle him to an injunction, as may the conduct of the defendant disentitle him from seeking the substitution of damages for an injunction.
The mere fact that a wrongdoer is able and willing to pay for the injury he has inflicted is not a ground for substituting damages’.
The court granted an injunction.
2. Damages
The court will award damages to compensate for loss where the Nuisance has already caused damage to the plaintiff’s property.
Bone v. Seals [1975] 1 WLR 797
Succeeded in receiving damages because of the smell emanating next door from a pig farm.
3. Abatement
The right of an injured party to abate the Nuisance is vividly illustrated in decisions such as Lemmon v. Webb [1895] AC 1
Encroachment of roots and branches onto another's land is an actionable Nuisance, and the injured party can cut the roots.
A land-owner may apply for a injunction before encroachment occurs.
Vitalograph (Ireland) Ltd. v. Ennis UDC & Clare Co. Co. (1997)
An occupier may have a duty to abate Nuisances created on their property.
Kelly J. granted an interlocutory injunction against the defendants, requiring them to restrain from acts of Nuisance committed by members of the Travelling Community on their lands.
Lynch v. Hetherton [1990] ILRM 857
O’Hanlon J. found the land-owner was not liable where a tree fell onto a car, because although rotten inside, it seemed healthy from the outside. He was reasonable in his assessment of the tree and therefore was not negligent.
No Defence to State that a Plaintiff came to the Nuisance
A defendant cannot argue that the plaintiff knew of the Nuisance before and therefore consented to it.
Sturges v. Bridgman (1879) 11 Ch D 852
The confectioner could not argue that the doctor knew of the noise before he built the consulting rooms and therefore could not complain.
Wheeler v. Saunders [1995] 2 All ER 697 at 703-707 – provides further authority for this general proposition.
Gillingham BC v. Medway [1992] 3 All ER 923
Buckley J.: Where planning consent is given, Nuisance is decided by reference to the neighborhood with that development, not as it was previously.
Approved by CA in Hunter but not considered by HL in Hunter.
The Interrelationship between a Nuisance Action and Planning Law
Cork Co Co v. Slattery Pre-Cast Concrete Ltd and Froggat and Others v. Slattery Pre-Cast Concrete Ltd [2008] IEHC 291
Clarke J. considered an injunction restraining Nuisance independent of a claim under Section 160 of the Planning and Development Act, 2000.
Held:
An injunction would ‘almost certainly’ be granted if the Nuisance was continuing.
Slatterys had taken remedial measures, so an injunction was not appropriate at that point.
Plaintiffs had liberty to return to the High Court if the conduct continued to constitute a Nuisance.
Note:
Operating in accordance with planning permission does not give a party the right to commit a civil wrong.
Defences
1. Consent
If the plaintiff consented to the impugned acts, the action will fail.
Thomas v. Lewis [1937] 1 All ER 137
The plaintiff had impliedly consented to the activities complained of and this constituted a defence to the tort of nuisance.
2. Inevitable Accident
The defence of inevitable accident used in 19th century shipping cases.
Southport Corporation v. Esso Petroleum [1954] 2 QB 182
The ship dumped oil in order to save the ship and his crew.
Defendants failed to show that the discharge of oil was an inevitable accident, i.e. a necessity which arose utterly without their fault.
The Impact of the ECHR
The impact of the European Convention on Human Right’s (ECHR) most relevant Convention provisions for present purposes are Article 8, the right to respect for private and family life, home and correspondence; Article 2, the right to life and Article 1 of Protocol No. 1, concerning inter alia protection of property.
See further, Hedley (6th ed) para 7.21.
Recommended Reading
Healy, Principles of Irish Torts, Chapter 10 III, pgs. 321– 331.
McMahon & Binchy, Law of Torts, Chapter 24, pgs. 675 – 716.
Quill, Torts in Ireland, Chapter 5, pgs. 215 – 242.
Burke & Corbett, The Law of Torts, Chapter 9, pgs. 69 – 83.