LAW OF TORT

NUISANCE

NUISANCE PRELIMINARY CONSIDERATIONS Definitions and Origins

Definitions for the 2 types of nuisance:

Private Nuisance An interference of an indirect or consequential nature with the use and enjoyment of land or some right in relation to it Read v Lyons

Public Nuisance An unlawful act or omission which materially affects the comfort and convenience of of a class of persons AG v PYA Quarries

Note: 1. The origins of the Tort of Nuisance 2. Distinction between Nuisance and Trespass: Prior of Southwarks Case (1498)

Nuisance in the Human Rights Era

Overlap between Tort of Nuisance and Article 8 of the European Convention on Human Rights (ECHR) (as implemented in the UK by the Human Rights Act 1998)

Lopez Ostra v Spain (1995) - problems such as noxious fumes

Nuisance and human rights remain separate and
cover different interests, despite overlap
Note: Marcic v Thames Water Utilities Ltd (2002)

Preliminary Considerations
Who can be Sued?

1. The Creator of the Nuisance

3. Landlords

2. The Occupier

1. The Creator of the Nuisance

Person who creates nuisance by some positive act may be sued whether he is an occupier of the land from which the nuisance comes Hall v Beckenham Corporation (1949)

Note: Street on Torts (12th Ed) pg 444 to 446

2. The Occupier
An occupier will be liable if he creates the nuisance. Question: What happens when the occupier did not create the nuisance but the nuisance is created by someone that comes to the occupiers premises? Guest of occupier Employee or contractors of occupier Trespassers on occupiers premises Natural occurrences

2. The Occupier Nuisance Created by those who come onto the occupiers premises
Guests of Occupier Att-Gen v Stone (1895) Employees / Contractors of Occupier - Bowe v Peate (1876) - Matania v Nat Prov Bank (1936) - Spicer v Smee (1946)

Natural Occurences Hollbreck Hall Hotel v Scarborough BC (2000)

Trespasser on Occupiers Property - Sedleigh-Denfield v OCallaghan (1940) - Goldman v Hargrave (1967) - Leakey v Nat Trust (1980)

Who can be sued?

3. The Landlord
If property is on a lease (rented out) then tenant would be liable However, landlord can be liable in certain circumstances Premises falling into L Authorised the disrepair during the Nuisance lease - Tetley v Chitty (1986) - Brew Bros Ltd v Snax - Smith v Scott (1973) Ltd (1970) - Hussain v Lancaster CC - S.4 Defective Premises Act 1972 (1999) L knew / ought - Lippiatt v S.Gloucestershire to have known Council (1999) of nuisance B4 letting out premises - Rosewell v Prior
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 Landlord can be liable in certain circumstances 1. Landlord authorised the Nuisance

Hussain v Lancaster City Council (1999) COA C shopkeepers argued that they were victims of systematic racial harassment by families living nearby on council properties Held: LCC will not be liable because LCC did not authorise the tenancy nor authorise the nuisance 9

Lippiatt v South Gloucestershire County Council (1999) COA Council allowed caravans by the trespassers to be parked at a piece of land adjoining the land of the claimants. Council knew of nuisance causing activities since caravans were there for 3 years Held: Council would be liable since they knew and continued to authorise the nuisance.

Qn: Why was the council not made liable in thesecases ? Tetley v Chitty (1986) Smith v Scott (1973)

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 Landlord can be liable in certain circumstances 2. Landlord knew or ought to have known of nuisance before letting the premises Rosewell v Prior Where the nuisance existed at the time of the letting the landlord will be liable if he knew or ought to have known of the nuisance before letting
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 Landlord can be liable in certain circumstances 3. If premises fall into disrepair during the lease Brew Bros Ltd v Snax (Ross) Ltd (1970) L liable if he reserves the right to re-enter and repair the premises Wringe v Cohen (1940) L will also be liable if he has an implied right to re-enter for repair and whether he knew of the defect or not S 4 Defective Premises Act (1972) Statutory liability for L if L is under obligation to repair

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NUISANCE PRELIMINARY CONSIDERATIONS - Who Can Sue ?

Who can sue ?

Only persons with sufficient interest in land would have locus standi
Read v Lyons & Co (1946) he alone has a lawful claim who has suffered an invasion of some proprietary interest in the land

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Persons with Sufficient Interest in Land

Malone v Laskey (1907) Claim failed because spouse of owner has no legal or equitable interest in the property Hunter v Canary Wharf (1997) Hunter v Docklands Development (1997) Interference by tower and construction to TV reception to nearby residences Held: Affirmed Malone v Laskey. Person must show that he has interest in land affected by the nuisance

Pemberton v Southwark LBC (2001) Tolerant trespasser had sufficient interest in land Note: Khorasandjian v Bush (1993) - Why was this case overruled ?

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Are the courts being too restrictive ?

Hunter v Canary Wharf (1997) - Lord Cookes dissenting judgement McKenna and Others v British Aluminium (2002) If people without proprietary claims intend to sue, can sue under Human Rights law

Qn: Can a person who has suffered personal injury, economic loss or damage to property sue ]

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WHEN DOES AN ACTIVITY CONSTITUTE A NUISANCE ? An activity will not be considered to be a nuisance if it constitutes a reasonable use of ones land (reasonable user) Factors determining reasonable use of land:

3. Malice 1. Tangible and Intangible harm

4. Duration

2. Locality / and Planning

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 Factors determining reasonable use of land 1. Tangible and intangible harm

- The more the harm the more unreasonable the use St Helens Smelting Co v Tipping (1865) (per Lord Westbury) - Distinction must be made between material injury vs sensible personal discomfort Interference with the use and enjoyment of the land must undoubtedly depend greatly on the circumstances of the place where the thing complained of actually occurs - Issue of locality
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Note: Hunter v Canary Wharf

 Factors determining reasonable use of land 2. Locality / and Planning (for intangible harm situations)
The expectation of the claimant in relation to the use and enjoyment of the property will vary according to the locality he lives in Sturges v Bridgman (1879) - Physician complained about the noise generated from a neighbour confectioner Held: The courts took into account that the area consists largely of medical specialists consulting room and homes.

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Halsey v Esso Petroleum Co Ltd (1961) - Nuisance caused by nauseating smell emanating from factory, noise at nights from the plant from the arrival of tankers etc Held: it is question of degree as to whether the interference is sufficiently serious taking into account the usual use of the locality Defendants made liable
Heath v Brighton Corp (1908) Same principle applies to sensitive persons , no regard is to be had of the special needs of individuals like acute sense of smell or hearing Murdoch v Glacier Metal Co Ltd (1998) Proximity of plaintiff to busy public bypass was taken into account notwithstanding that the level of noise was above the permitted level by WHO
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What if the grant of planning consent changes the character Of the neighbourhood? Gillingham Council v Medway Dock Co (1993) The grant of Planning permission is not a licence to commit a nuisance but the fact that the nuisance arises must be decided on with reference to the altered character and not as previously

Wheeler v Saunders (1995) If the effect of the grant does not change the character of the neighbourhood, then the nuisance caused may be actionable even where it is authorised use Note: Hunter v Canary Wharf

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 Factors determining reasonable use of land 3. Malice

In judging what constitutes unreasonable user, courts will take into account the main objective of the defendants activities If there was an element of malice, such use of the land would be unreasonable Christie v Davey (1891) - Noise emanated from the claimants neighbouring property. Neighbour intended to annoy the claimants Held: Such activity had the motive of being malicious and deliberate

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Mayor of Bradford v Pickles (1895) Lord Halsbury

If lawful act However ill the motive, If he had right to do it there will be no liability

If unlawful act However good the motive, If he had no right to do it there will be liability

Hollywood Silver Fox Farm v Emmet (1936) - firing of guns out of spite with objective of interfering with the breeding of silver foxes by the claimant Held: Actionable because of ill motive Hunter v Canary Wharf (1997) Defendant actuated with malice may incur liability where the same interference innocently caused will not result in liability
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 Factors determining reasonable use of land 4. Duration

Nuisance must arise out of a continuing state of affairs and is dependent on:

Frequency of interference Magnitude of each interference Likelihood of future injuries

Bolton v Stone (1950) SCM (UK) Ltd v WJ Whittal & Son Ltd (1970) - once off activity, not actionable
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DEFENCES (AND NON DEFENCES)

Hypersensitive Activities

Came to the Nuisance

Statutory authority Prescription

Public Benefit QN: Which is a defence and a non defence

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Came to the Nuisance

Sturges v Bridgman (1879) - D argued that the physician came to the nuisance and he had already been carrying out the confectionery biz for the previous 20 years Held: It is not defence to say I was here first and the claimant came to the nuisance The court rejected this argument as the were of the opinion that it was not a recognised defence Miller v Jackson (1977)

DEFENCES (AND NON DEFENCES)

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Prescription
To establish this defence, D must show that activity has been conducted without complaint from his neighbour for 20 yrs

DEFENCES (AND NON DEFENCES)

Sturges v Bridgman (1879) - D argued that the physician came to the nuisance and he had already been carrying out the confectionery biz for the previous 20 years Held: 20 yrs starts to run only when claimant comes on the land and not from the time the activity started
Miller v Jackson (1977)

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Hypersensitive Activities
This is an argument where the activity may not cause harm to the vast majority but only to a particular person With a delicate condition DEFENCES (AND NON DEFENCES) Robinson v Kilvert (1889) - Claimants brown Paper quality declined because of heat emanated from neighbouring property Held: Claimant cannot claim because he carried out an exceptionally delicate trade McKinnon Industries v Walker (1951) - Claimants orchids cultivation destroyed by emission of sulfur dioxide (special use of land by defendant) Held: Once nuisance is established, claimant can claim because such harm would be suffered in ordinary circumstances

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Bridlington Relay v Yorkshire Electricity Board (1965)

The case concerned electrical interference with TV signals caused by the activities of the defendant Electricity Board. Held: Such interference did not constitute a nuisance, bcos it was interference with a purely recreational facility, as opposed to interference with the health or physical comfort or well-being of the plaintiffs.
The court did not exclude the possibility that ability to receive television signals free from interference might one day be recognised as "so important a part of an ordinary householder's enjoyment of his property that such interference should be regarded as a legal nuisance, particularly, perhaps, if such interference affects only one of the available alternative programmes."
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Hypersensitive Activities
Note: legitimacy of this arguments in light of the issue of forseeability of harm ? Cambridge Water v Eastern Countries Leather (1994) The fact that the defendants had taken reasonable Care to avoid a nuisance will not exonerate them from liability Lord Goff stated that it by no means follows that the D should be liable for damage of a type which he could not reasonable forsee forseeability of harm is indeed a prerequisite of the Recovery of damages in nuisance.

DEFENCES (AND NON DEFENCES)

Hunter v Canary Wharf (1997)

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Public Benefit
This is the argument where the defendant argues that the harm caused to the neighbour is outweighed by public benefit Adams v Ursell (1913) - Dry fish business, D argued public benefit of community Held: not a defence. Actionable by claimant arguing nuisance by foul smell Kennaway v Thompson (1981) - Since harm is suffered, difficult to argue as a defence What about circumstances of national defence ? Dennis v Ministry of Defence (2003)
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DEFENCES (AND NON DEFENCES)

Statutory Authority
Defence if it is an inevitable result of the use of statutory power or implementation of statutory duties Allen v Gulf Oil Refining Ltd (1981) Parliament intended a refinery to be constructed. There was a statutory immunity in respect of any nuisance which was an inevitable result Note Manchester Corporation v Farnworth (1930) Smeaton v Ilford Corporation (1954) Marcic v Thames Water (2004)

DEFENCES (AND NON DEFENCES)

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NUISANCE AND NEGLIGENCE What if the nuisance is caused by negligence ? Is liability for nuisance strict or fault based ?

Rapier v London Tramways (1893) Sedleigh-Denfield v OCallaghan (1940) Goldman v Hargrave (1967) Leakey v National Trust (1980)

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 Foreseeability of Harm
Sedleigh-Denfield v OCallaghan (1940) - Liability for nuisance is not, at least in modern law, a strict or absolute liability The Wagon Mound (No. 2)(1967) - Distinction between fault due to negligence and fault due to foreseeability

Cambridge Water Co v Eastern Countries Leather Co (1994) - Harm must be foreseeable for purposes of establishing a cause of action for nuisance - The fact that the defendant has taken all reas care will not in itself exonerate him from liability
Anthony v The Coal Authority (2005) - foreseeability is a requirement
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REMEDIES

Damages

Abatement of Nuisance (Self Help) Damages in lieu of Injunction

Injunctions

QN: When and in what circumstances would these remedies be granted ?

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Damages
1. Usually claimed in circumstances of damage to property or dimunition in market value Marquis of Granby v Bakewell UDC (1923) - the claimant can recover the monetary value of the damage to his property which is the difference of the value of the property before and after the damage James v Gooday (1841)

2. Economic loss may be recoverable REMEDIES Dunton v Dover District Council (1977) SCM (UK) Ltd v WJ Whitall and Sons Ltd (1970)

3. Claims for foreseeable damages only The Wagon Mound (No.2)(1967)

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Injunctions
1. An order from the court directing the defendant to desist from the future commission of the tortious act

2. It is a discretionary remedy and the courts have in the past been influenced by 2 factors:

Gravity of the interference Cooke v Forbes Interference must be substantial

REMEDIES

Public Interest Wheeler v Saunders (1995) Public interest must be allowed to prevail Gillingham v Medway Docks (1993)

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Damages in Lieu of Injunction

The courts have an equitable discretion to award damages in circumstances where the claimant would normally be entitled to an injunction Shelfer v City of London Electric Lighting Co (1895) - Damages in substitution for an injunction may be given if: It would be oppressive to the defendant to grant an injunction The injury can be adequately compensated by a small money payment
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Injury to the Ps legal right is small

REMEDIES

The injury is one which is capable of being estimated in money

Damages in Lieu of Injunction

The Shelfer test has been used in several cases and in all cases the courts were of the view that the test must be used sparingly

Jaggard v Sawyer (1995) CA - Approved application of Shelfer test - Defendants had acted in good faith and openly - Plaintiffs had delayed in applying for relief - granting of injunction would be oppressive to D
Miller v Jackson (1977) Allen v Gulf Oil Refining Ltd (1979)

REMEDIES

Kennaway v Thompson (1981)

Dennis v Ministry of Defence (2003) Watson v Croft Promo-Sport Ltd (2008)
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Abatement of Nuisance
This is a remedy where the claimant is entitled to take matters into his own hands and abate the nuisance without going to court Lemmon v Webb (1895) Lagan Navigation v Lamberg Bleaching Co (1927)

The courts do not favour such an approach

Qn: In what circumstances would the courts allow for this ?

REMEDIES

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PUBLIC NUISANCE

What is the distinction between Private and Public Nuisance?

AG v P.Y.A Quarries (1957) R v Madden (1975) Dymond v Pearce (1972)

What are the examples of Public Nuisance situations ? Are the elements for Private and Public Nuisance The same or do they differ ?

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