LAW OF TORT

NUISANCE NUISANCE

NUISANCE – PRELIMINARY CONSIDERATIONS - Definitions and Origins

Private Nuisance Public Nuisance

An interference of an indirect orconsequential nature with the use and enjoyment of landor some right in relation to it • Read v Lyons

An unlawful act or omissionwhich materially affects the comfort and convenience of of a class of persons• AG v PYA Quarries

Definitions for the 2 types of nuisance:

Note:1. The origins of the ‘Tort of Nuisance’2. Distinction between Nuisance and Trespass: Prior of Southwark’s 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 Creatorof 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 occupier’s premises?

• Guest of occupier• Employee or contractor’s of occupier• Trespassers on occupier’s premises• Natural occurrences

2. The Occupier – Nuisance Created by those who come onto the occupier’s premises

Natural Occurences

Att-Gen v Stone (1895)

Guests of Occupier

Employee’s /Contractor’s ofOccupier

- Bowe v Peate (1876)- Matania v Nat Prov Bank (1936)- Spicer v Smee (1946)

Trespasser onOccupier’s Property

- Sedleigh-Denfield v O’Callaghan (1940)- Goldman v Hargrave (1967)- Leakey v Nat Trust (1980)

Hollbreck Hall Hotelv Scarborough BC(2000)

Who can be sued?

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3. The Landlord

If property is on a lease (rented out) then tenant wouldbe liable

However, landlord can be liable in certain circumstances

L Authorised the Nuisance

L knew / oughtto have knownof nuisance B4letting out premises

- Tetley v Chitty (1986)- Smith v Scott (1973)- Hussain v Lancaster CC (1999)- Lippiatt v S.Gloucestershire Council (1999)

- Rosewell v Prior

Premises falling intodisrepair during the lease

- Brew Bros Ltd v Snax Ltd (1970) - S.4 Defective Premises Act 1972

Landlord can be liable in certain circumstances

1. Landlord authorised the Nuisance

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

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• 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 circumstances2. 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 circumstances3. 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”

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 Cooke’s 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 bea nuisance if it constitutes a reasonableuse of ones land (‘reasonable user’)

• Factors determining reasonable use of land:

1. Tangible and Intangible harm

3. Malice

2. Locality / and Planning

4. Duration

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Factors determining reasonable use of land1. Tangible and intangible harm

• St Helen’s Smelting Co v Tipping (1865)(per Lord Westbury)- Distinction must be made between

material injury vs sensible personal discomfort

“must undoubtedly depend greatly on the circumstances of the place where the thing complained of actually occurs”- Issue of locality

- The more the harm the more unreasonable the use

Interference with the use and enjoyment of the land

Note:Hunter v Canary Wharf

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Factors determining reasonable use of land2. Locality / and Planning (for intangible harm

situations)

• 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.

- The expectation of the claimant in relation to the use and enjoyment of the property will vary according to the locality he lives in

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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 isto be had of the special needs of individuals like acutesense 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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• Gillingham Council v Medway Dock Co (1993)The grant of Planning permission is not a licence to commita nuisance but the fact that the nuisance arises must bedecided 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 characterof the neighbourhood, then the nuisance caused may beactionable even where it is authorised use

What if the grant of planning consent changes the character Of the neighbourhood?

Note:Hunter v Canary Wharf

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• Christie v Davey (1891)- Noise emanated from the claimant’s neighbouring property. Neighbour intended to annoy the claimantsHeld: Such activity had the motive of being malicious

and deliberate

- In judging what constitutes unreasonable user, courts will take into account the main objectiveof the defendant’s activities

- If there was an element of malice, such use of the land would be unreasonable

Factors determining reasonable use of land3. Malice

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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 claimantHeld: Actionable because of ill motive

• Hunter v Canary Wharf (1997)Defendant actuated with malice may incur liability wherethe same interference innocently caused will not result inliability

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Factors determining reasonable use of land4. Duration

• Bolton v Stone (1950)

• SCM (UK) Ltd v WJ Whittal & Son Ltd (1970)- once off activity, not actionable

- 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

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DEFENCES (AND ‘NON DEFENCES)

“Came to theNuisance”

Public Benefit

Prescription

Statutory authority

HypersensitiveActivities

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 yearsHeld: 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)

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• 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 yearsHeld: 20 yrs starts to run only when claimant comes on

the land and not from the time the activity started

• Miller v Jackson (1977)

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

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Hypersensitive Activities

• Robinson v Kilvert (1889)- Claimant’s brown Paper quality declined because of heat

emanated from neighbouring propertyHeld: Claimant cannot claim because he carried out an

exceptionally delicate trade

This is an argument where the activity may not cause harm to the vast majority but only to a particular personWith a ‘delicate condition’

• McKinnon Industries v Walker (1951)- Claimant’s 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

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, b’cos 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

• 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 liabilityLord Goff stated that it by no means follows that the D shouldbe 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.

Note: legitimacy of this arguments in light of the issue of forseeability of harm ?

• Hunter v Canary Wharf (1997)

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Public Benefit

• Adams v Ursell (1913)- Dry fish business, D argued public benefit of communityHeld: not a defence. Actionable by claimant arguing nuisance

by foul smell

This is the argument where the defendant argues that the harmcaused to the neighbour is outweighed by public benefit

• 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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Statutory Authority

• 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

Defence if it is an inevitable result of the use of statutory poweror implementation of statutory duties

Note

• Manchester Corporation v Farnworth (1930)• Smeaton v Ilford Corporation (1954)• Marcic v Thames Water (2004)

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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 O’Callaghan (1940)

• Goldman v Hargrave (1967)

• Leakey v National Trust (1980)

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Foreseeability of Harm

• Sedleigh-Denfield v O’Callaghan (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

Injunctions

Damages in lieuof Injunction

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

Abatement ofNuisance (SelfHelp)

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Damages

• 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

1. Usually claimed in circumstances of damage to property or dimunition in market value

• James v Gooday (1841)

2. Economic loss may be recoverable

• 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

Public Interest

• Cooke v Forbes Interference must be substantial

• 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

• Shelfer v City of London Electric Lighting Co(1895)- Damages in substitution for an injunction may be given if:

The courts have an equitable discretion to award damages in circumstances where the claimant would normally be entitledto an injunction

Injury to the P’slegal right is small

The injury is one which is capable of being estimatedin money

The injury can beadequately compensatedby a small money payment

It would be oppressiveto the defendant togrant an injunction

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Damages in Lieu of Injunction

• 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)

• Kennaway v Thompson (1981)

• Dennis v Ministry of Defence (2003)

• Watson v Croft Promo-Sport Ltd (2008)

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

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Abatement of Nuisance

• Lemmon v Webb (1895)

This is a ‘remedy’ where the claimant is entitled to take matters into his own hands and abate the nuisance without going to court

• 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 ?

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________________________________________________________________________________________PUBLIC NUISANCE

What is the distinction between Private and PublicNuisance?

• 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 ?