Tort - nuisance

Question 1

Point of private nuisance?

Answer 1

Exists to protect an individual in their enjoyment of their own property.

Question 2

Private nuisance

What type of loss is not covered by claims in private nuisance?

Answer 2

Personal injury

Question 3

Private nuisance

Possible for a claimant to have claims in private nuisance and in negligence?

Answer 3

Yes - would be the case where C has suffered actual damage to their property

Question 4

Private nuisance

Definition of private nuisance?

Answer 4

Unlawful interference with a person’s use or enjoyment of land, or some right over, or in connection with it.

Question 5

Private nuisance - interferences

What are the three types of interferences?

Answer 5

1. Nuisance by encroachment on a neighbour’s land
2. Nuisance by indirect physical injury to a neighbour’s land; and
3. Nuisance by interference with a neighbour’s quiet enjoyment of their land

Question 6

Private nuisance - interferences

Nuisance by interference with quiet enjoyment?
Two things that were held not to count?

Answer 6

• Also known as ‘loss of amenity’
• Wide-ranging, e.g. smell, dust, noise, blocking of light
• Must be something that materially interferes with ‘ordinary comfort’.
• Loss of a view won’t count
• Interference with TV reception didn’t count

Question 7

Private nuisance - interferences

What does it mean that an interference must be ‘unlawful’?

Answer 7

• Means ‘substantial and unreasonable’
• Court will balance right of one person to use their land as they please with another person’s right not to be interfered with
• Physical encroachment onto a neighbour’s land (e.g. by overhanging trees) if immediately unlawful

Question 8

Private nuisance - interferences

The ‘unreasonableness’ of what, is being judged?

Answer 8

• Not relevant whether the D has acted unreasonably
• Has D’s use of their land unreasonably interfered with C’s reasonable use of their land

Question 9

Private nuisance - unlawful?

Factors court will consider in determining whether the interference is unlawful?

Answer 9

1. Duration and frequency
2. Excessiveness of conduct/ extent of harm
3. Character of the neighbourhood
4. Malice

Question 10

Private nuisance - factors for considering unlawfulness

Duration and frequency?

Answer 10

• Some degree of continuity and frequency is required
• Isolated incident unlikely to give rise to private nuisance liability
• Isolated incident will only be actionable if emanating from continuing state of affairs on D’s property

Question 11

Private nuisance - factors for considering unlawfulness

Excessiveness of conduct/ extent of harm?

Answer 11

• Court will consider how far removed D’s conduct is from ‘normal’ behaviour (viewed objectively)
• Will also consider extent of the harm on C. Viewed subjectively - if D’s behaviour isn’t impacting on C’s enjoyment of the home (e.g. because loud music is played during the day when C is out at work), then there’ll be no action
• Interference which causes physical damage is likely to be excessive

Question 12

Private nuisance - factors for considering unlawfulness

Character of the neighbourhood.
Limitations?

Answer 12

• Relevant to interferences which cause personal discomfort and inconvenience, not those which cause physical injury
• e.g. someone living in London should expect to have to tolerate noise; someone living in the countryside can expect farm smells
• But, if activities cannot be carried out without creating a nuisance, or they are in breach of planning permissiom they will be completely discounted when assessing the character of the neighbourhood

Question 13

Private nuisance - factors for considering unlawfulness

Public benefit

Answer 13

• Not a relevant factor in deciding whether D’s use is unreasonable (i.e. unlawful), as public benefit should not deprive an individual of private rights
• (May be relevant when court is deciding whether to grant an injunction)

Question 14

Private nuisance - factors for considering unlawfulness

Malice?

Answer 14

• Interference will be unreasonable (and thus unlawful) if carried out with malice
• Malice likely to tip balance in C’s favour, so an interference which would have been reasonable in the absence of malice may become unreasonable because of it

Question 15

Private nuisance - abnormal sensitivity

Abnormal sensitivity?

Answer 15

• Unlawfulness of interference will be judged against a ‘normal user’ of the land, ignoring any abnormal sensitivity
• e.g. fumes affecting delicate orchids. If fumes would not have damaged more robust plants, then there would be no unlawful interference. If they would have done, then there would be an actionable nuisance
• Note that thin skull rule applies, so it wouldn’t matter that robust plants would have suffered less damage, and all orchid’s losses would be recoverable

Question 16

Private nuisance

Who can sue?

Answer 16

• Only a person with right to exclusive possession (includes tenants and owners), i.e. a proprietary right in the land
• Children of an owner-occupier don’t have a right to exclusive possession, so can’t bring a claim; nor can guests, e.g. of a hotel

Question 17

Private nuisance

Who is liable?

Answer 17

• Creator of the nuisance
• Occupier of the land from which nuisance originates
• Landlord

Question 18

Private nuisance - who’s liable?

Creator of the nuisance

Answer 18

Original creator remains liable, even if land is now occupied by someone else.

Question 19

Private nuisance - who’s liable?

The occupier?

Answer 19

• Will be liable for nuisances they have created, whether by actions or omissions
• May also be liable for nuisance created by an independent contractor, provided nature of the work carried a special danger of the nuisance being created
• Where nuisance is created by a visitor, predecessor in title, or trespasser, provided occupier has adopted the nuisance or continued it

Question 20

Private nuisance - who’s liable? - occupiers

When will an occupier be liable for the actions of a trespasser/ visitor/ predecessor in title?

Answer 20

• If occupier has either ‘adopted’ or ‘continued’ the nuisance.
• Adopted = making use of the thing which constituted the nuisance
• Continued = failing to take reasonable steps to end the nuisance once they know or ought reasonably to have known of its existence.

Question 21

Private nuisance - who’s liable?

The landlord?
(Three circumstances)

Answer 21

Tenant will usually be the D, because they are in occupation.

Landlord liable:
a) Where they have expressly or impliedly authorised the nuisance (e.g. where a local council let a piece of land to a go-kart racing club)
b) If nuisance existed at the start of the letting and landlord knew or ought reasonably to have known of it
c) Land has covenanted to repair the premises, or has the right to enter to do so, and has failed to make repairs, giving rise to nuisance

Question 22

Private nuisance - damage

Types of damage recoverable?

Answer 22

• Physical damage to land or buildings (including crops/plants)
• Interference with the quiet enjoyment of the land
• Where C can prove recoverable damage (i.e. one of the above), then D will also be liable for consequential losses, e.g. loss of profits where a nuisance prevents a business from operating normally

Question 23

Private nuisance

Causation and remoteness?

Answer 23

Same tests as in negligence, so:
* but for test
* test in Wagon Mound - was the kind of damage which occured reasonably foreseeable to someone in D’s position at the time the relevant acts were done

Question 24

Private nuisance

Effective defences?

Answer 24

a) Prescription
b) Statutory authority
c) Contributory negligence
d) Consent
e) Acts of God
f) Necessity

Question 25

# Private nuisance - effective defences Prescription?

Answer 25

If D can show that **they** have been continuing the nuisance for a period of at least 20 years against the claimant i.e., it must have been **actionable by the claimant** for at least 20 years. If D's activity has been going on for 30 years but it's only just started affecting the claimant, prescription won't apply.

Question 26

# Private nuisance - effective defences Statutory authority?

Answer 26

* If D can show that the nuisance was an inevitable result of doing what the statute authorised * Most likely to apply to public authorities * e.g. an oil company is authorised by an Act of Parliament to construct an oil refinery - operation of the refinery is implicitly authorised by the Act and the nuisances (noise and vibrations) are inevitable

Question 27

# Private nuisance - effective defences Consent?

Answer 27

If D can show that Claimant has specifically agreed to accept the interference, e.g. because C has asked D to burn rubbish on a bonfire

Question 28

# Private nuisance - effective defences Acts of God/ nature?

Answer 28

Where interference results from a 'secret unobservable process of nature' (e.g. subsidence at/near foundations) or from an act of God (like lightning) then D won't be liable unless they adopt or continue the nuisance.

Question 29

# Private nuisance - effective defences Two elements for the defence of necessity?

Answer 29

* Situation of necessity exists because of an imminent danger to life and limb (or, in very limited circumstances, a threat to property); and * D's actions were reasonable in all the circumstances

Question 30

# Private nuisance - effective defences When can necessity not be relied upon?

Answer 30

If the circumstances giving rise to the necessity were of D's own making, i.e. if they were at fault in any way.

Question 31

# Private nuisance - effective defences Example where necessity was successful?

Answer 31

* Oil tanker ran aground * Danger that it might break up, with probably loss of lives of crew * Master discharged 400 tons of oil into the sea * HoL held that a nuisance had been committed, but necessity defence was successful

Question 32

# Private nuisance - defences Ineffective defences?

Answer 32

a) Claimant 'came to the nuisance' b) Public benefit c) Others' contributory negligence d) Planning permission

Question 33

# Private nuisance - ineffective defences C 'came to the nuisance'?

Answer 33

* Won't work to say 'you knew about this when you bought the house' * Provided a claimant uses their property for essentially the same purpose as their predecessors, D cannot rely on the defence * Nuisance claim may fail if C builds on their land/ changes the use after D had begun the activity

Question 34

# Private nuisance - ineffective defences Public benefit?

Answer 34

Won't work as a defence (but may be taken into account when court considers whether to grant an injunction)

Question 35

# Private nuisance - ineffective defences Contributory actions of others?

Answer 35

* No defence that nuisance results from separate actions of other people * i.e. irrelevant that it's the combined effect of lots of stalls created a nuisance - each stall holder will potentially be liable

Question 36

# Private nuisance - ineffective defences Planning permission? Case law example re. former naval dockyard?

Answer 36

* Mere grant of planning permission does not legitimise a nuisance * Can operate to change the 'character of the neighbourhood' and thus effect a decision around whether the interference is unlawful * Gillingham v Medway, planning permission was granted for a former dockyard to be converted into a port. Court said had to consider the 'character of the neighbourhood' **after the grant of permission, not before** - in the new context, level of noise not unlawful

Question 37

# Private nuisance Scenario in which court might consider planning permission when assessing a claim?

Answer 37

Where the permission stipulates limits as to the frequency/ intensity of noise - may be relevant in assisting claimant's action

Question 38

# Private nuisance - remedies Two principal remedies?

Answer 38

a) damages b) injunction

Question 39

# Private nuisance - remedies Basic principle re. damages?

Answer 39

* Will be awarded for any loss which C has suffered by date of trial * Court has a limited power to award damages for future loss

Question 40

# Private nuisance - remedies Damages for physical damage to C's land?

Answer 40

C will generally be awarded damages to reflect cost of repair, if not possible, compensated for loss in the value of the land

Question 41

# Private nuisance - remedies Damages for personal discomfort

Answer 41

Was suggested in Hunter v Canary Wharf that personal discomfort should be valued by looking at loss of amenity value of the land in question.

Question 42

# Private nuisance - remedies Effect of a mandatory injunction?

Answer 42

Orders D to take a positive action to rectify the consequences of what they have done.

Question 43

# Private nuisance - remedies What's a 'quia timet' injunction?

Answer 43

An injunction (prohibitory or mandatory) made **in anticipation of a tort** in order to prevent claimant suffering any damage.

Question 44

# Private nuisance - remedies Conditions for C to be granted a quia timet injunction?

Answer 44

Will have to show: a) that they are almost certain to incur damage without it; b) that such damage is imminent; and c) that D won't stop their course of conduct without order of the court

Question 45

# Private nuisance - remedies What if court decides not to exercise its discretion to grant an injunction? (i.e. other powers)

Answer 45

It can grant damages in lieu - **which can cover future breaches**. C is compensated for future interference with their rights, rather than getting an injunction prohibiting the interference.

Question 46

# Private nuisance - remedies Damages granted instead of an injunction - guidelines on how the court **may** exercise its discretion. Deterministic?

Answer 46

May do so where: * harm suffered by the applicant is small, harm is capable of being quanitified in financial terms, and damages would be adequate compensation; and * it would be oppressive to D to grant the injunction Not deterministic - those elements being satisfied doesn't automatically mean that court shouldn't exercise its discretion to grant an injunction.

Question 47

# Private nuisance - remedies Other factors court might take into account when deciding whether to grant an injunction?

Answer 47

* Public interest (e.g. effect on employees of the defendant, or likelihood that people other than the claimant will be affected) * Existence of planning permission - may lead court to conclude damages would be more appropriate

Question 48

# Private nuisance - remedies Other than injunction/ damages, what's another possible remedy?

Answer 48

Abatement (i.e. self-help). * removal by the victim of the interference * must normally give prior notice, **unless** it's an emergency, or nuisance can be removed without entering wrongdoer's land * e.g. cutting branches off an overhanging tree, if it can be done without entering owner's land

Question 49

# Private nuisance What will court take into account for an action in private nuisance if hazard has arisen naturally on the land?

Answer 49

Defendant's financial resources

Question 50

# Rylands v Fletcher What's the rule?

Answer 50

Where there is an escape of something dangerous in the course of a non-natural use of land.

Question 51

# Rylands v Fletcher Necessary to prove fault?

Answer 51

No - strict liability regardless of whether or not occupier failed to take reasonable care.

Question 52

# Rylands v Fletcher Relationship to private nuisance?

Answer 52

It's a type of private nuisance, so rules on: * who can sue * who can be liable * types of damage recoverable (e.g. not personal injury) * defences * remedies are the same

Question 53

# Rylands v Fletcher Four elements of the tort

Answer 53

a) D brings something onto their land for their own purposes which is likely to do mischief if... b) it escapes... c) which represents a non-natural use of land; and d) causes reasonable damage of the relevant type

Question 54

# Rylands v Fletcher D brings something onto their own land for their own purposes which is likely to do mischief. Nature of the thing? Examples?

Answer 54

* Need not be dangerous in and of itself * Must be capable of causing damage if it escapes * e.g. water, cattle, sewage, electricity

Question 55

# Rylands v Fletcher D brings something onto their own land for their own purposes which is likely to do mischief. Threshold?

Answer 55

Must show that D had done something which they recognised, or ought reasonably to have recognised as giving rise to an **exceptionally high risk** of danger or mischief if there was an escape, however unlikely the escape.

Question 56

# Rylands v Fletcher Escape? Contrast with private nuisance?

Answer 56

* Must be an escape of a thing 'likely to do mischief' * No need for continuity/ frequency - an isolate escape is sufficient * The physical thing itself must escape - not possible to make a claim, for example, because something caught fire and *the fire* escaped (because the fire had not been brought onto the land)

Question 57

# Rylands v Fletcher Non-natural use of land?

Answer 57

* Use of land must be 'extraordinary or unusual according to the standards of the day' * Use of land for normal industrial purposes won't generally be a non-natural use * Will be fact-specific - making bicycles in a factory is an ordinary use; making explosives isn't

Question 58

# Rylands v Fletcher Causes foreseeable damage of the relevant type?

Answer 58

i.e. remoteness: was the damage reasonably foreseeable?

Question 59

# Rylands v Fletcher The five defences (some the same as private nuisance)

Answer 59

1. Escape caused by the **unforeseeable** act of a stranger 2. Escape caused by an unforeseeable 'act of God' 3. Statutory authority 4. Consent (voluntary assumption of risk) 5. Contributory negligence

Question 60

# Public nuisance Particularity of public nuisance as opposed to private?

Answer 60

* It's a crime as well as a tort * Public officers/ bodies are primarily responsible for enforcement

Question 61

# Public nuisance Definition of the **crime**?

Answer 61

An act or an omission that endangers the life, health, property or comfort of the public, or obstructs the public in the exercise or enjoyment of rights common to all Her Majesty’s subjects

Question 62

# Public nuisance Elements of the **tort**?

Answer 62

* conduct that **materially affects the reasonable comfort and convenience** of 'a class of Her Majesty's subjects'; and * the claimant has suffered **particular harm**

Question 63

# Public nuisance 'Unreasonable conduct that materially affects the reasonable comfort and convenience of a ‘class of Her Majesty’s subjects’?

Answer 63

* i.e. different from private nuisance, which only affects particular individuals * number of people in a locality who need to have been affected is a question of fact * representative cross-section must have been affected

Question 64

# Public nuisance What would happen if, for example, lots of householders in a particular place were affeceted by the smell from a huge pile of undealt-with rubbish?

Answer 64

Falls within the crime - A-G would take proceedings for an injunction. Acting in defence of a public right, not for any individual interests.

Question 65

# Public nuisance Claimant has suffered particular harm? Nature of the injury?

Answer 65

* Claimant wishing to bring a claim must have suffered 'particular' damage over and above that suffered by the public at large * Property damage, loss of profit **and personal injury**

Question 66

# Public nuisance Loss claimable in public nuisance which isn't in private?

Answer 66

Personal injury

Question 67

# Public nuisance Generally, what needs to be the impact for public nuisance to be actionable in tort?

Answer 67

* **sufficiently wide class of persons needs to be affected**; (e.g. because golf balls keep landing on a pavement); **and** * **a particular individual needs to have suffered a loss** (e.g. because a golf ball hit them on the head)

Question 68

# Public nuisance Necessary for claimant to have a proprietary interest in land?

Answer 68

No