11. Nuisance; Rule in Rylands v Fletcher

Question 1

What are the three forms of nuisance?

Answer 1

1. Private
2. Public
3. Statutory

Question 2

What is a public nuisance?

Answer 2

Unreasonable interference with the comfort and convenience of life of a class of the public

Question 3

Can an isolated incident give rise to a public nuisance?

Answer 3

Yes., but must be unreasonable.

Question 4

Does public nuisance cover personal injury and damage to property?

Answer 4

Yes

Question 5

Who are the two parties who can sue for public nuisance?

Answer 5

1. An individual in the class if they have suffered damage over and above the damage suffered by the class in general
2. The Attorney General on behalf of the class to stop the nuisance

Question 6

What is a private nuisance?

Answer 6

Unlawful interference with the claimant’s use and enjoyment of land.

Unlawful means unreasonable and substantial.

Compare to trespass to land which is the unlawful and direct interference with a claimant’s possession of land.

Question 7

For the purposes of private nuisance, when is an interference unlawful?

Answer 7

When it is unreasonable and substantial

Question 8

Can an isolated event give rise to a private nuisance?

Answer 8

No, it requires a continuing state of affairs.

Question 9

What is the most essential element of nuisance?

Answer 9

Damage

Question 10

What are the three types of damage that can give rise to private nuisance?

Answer 10

1. Physical damage to land, e.g. flooding, vibrations
2. Amenity damage, e.g. noise, smells, dust
3. Encroachment into land, e.g. overhanging branches or tree roots

Question 11

Regarding intangible damage like noise and smells, what is the key difference between nuisance and negligence?

Answer 11

Intangible damage is not actionable in negligence

Question 12

Regarding damages, what is the key difference between private nuisance and negligence?

Answer 12

The types of damages available for personal injury in negligence are not available in private nuisance, as nuisance deals with interference with land.

Note public nuisance allows for recovery personal injury.

Question 13

What is the difference between trespass to land and nuisance?

Answer 13

Trespass to land concerns intentional and direct interference with claimant’s possession of land.

Nuisance concerns damage which is indirect and which goes to enjoyment of the land.

Question 14

What two parties can be sued for private nuisance?

Answer 14

1. Creator of the nuisance even if they are no longer in occupation
2. Occupier of the land where the nuisance exists

Question 15

The occupier is also liable for nuisance created on their land by whom?

Answer 15

1. Employees
2. People under occupier’s control
3. Independent contractors, if the conduct carries a special danger of causing a nuisance

Question 16

In what situation is an occupier liable for a nuisance created on their land by a trespasser or natural event?

Answer 16

If they adopt (make use of) or continue (fail
to deal with after they know or ought to of) the nuisance

Question 17

When will an occupier be deemed to adopt a nuisance?

Answer 17

If they make use of the thing that constitutes the nuisance for their own purposes

Question 18

When will an occupier be deemed to continue a nuisance?

Answer 18

If they fail to take reasonable steps to deal with the nuisance when they know or ought to have known about it

Question 19

What must a claimant have to be able to bring a claim for private nuisance?

Answer 19

A proprietary interest in the land affected

Question 20

Who will be deemed to have a proprietary interest in the land?

Answer 20

1. Freehold owners
2. Leasehold owners
3. Tenants
4. Persons in exclusive possession

Question 21

Can claims be brought by people merely present on the land, e.g. family members, lodgers, or employees?

Answer 21

No

Question 22

In determining whether an interference is unreasonable for the purposes of assessing whether it is unlawful and therefore a nuisance, what five factors will the court take into account?

Answer 22

1. Intensity and duration
2. Character of the neighbourhood
3. Abnormal sensitivity
4. Malice
5. Reasonable care

Question 23

What is also considered under intensity and duration?

Answer 23

The time of day or night the nuisance occurs

Question 24

When will the court consider the character of the neighbourhood?

Answer 24

When the damage is amenity damage such as noise or smells

Question 25

Is the character of the neighbourhood taken into account where the damage is physical or encroachment onto the land?

Answer 25

No

Question 26

What is abnormal sensitivity and will it give rise to an action in nuisance?

Answer 26

If the interference only exists because the claimant has an abnormal sensitivity, this will not give rise to a nuisance.

Question 27

How does malice affect how behaviour is assessed by the courts?

Answer 27

Reasonable and lawful behaviour can become actionable in nuisance if motivated by malice

Question 28

Is the court concerned with the reasonableness of the defendant’s conduct?

Answer 28

No, just the reasonableness of the interference

Question 29

What is the effect of the court being concerned with the unreasonableness of the intereference, and not taking into account the reasonableness of the defendant’s conduct?

Answer 29

Defendant can still be responsible for a nuisance even if they took reasonable care.

For example: Next to the land of the claimant an industrial plant has opened. The industrial plant operates 23h/day. The the machine used for production emits loud noise and heavy vibrations during its peak productions which lasts for 3hours every 3hours. The manufacturer spent extra money on anti vibration features for the machine and does everything possible to minimise the smell emitted by the machine. Here the conduct itself would be reasonable, but the court will not be concerned with the conduct, but only with the interference.

Question 30

What is required of the damage to be actionable?

Answer 30

It must be reasonably foreseeable

Question 31

What are the two defences to private nuisance?

Answer 31

1. Prescription
2. Statutory authority

Question 32

When will a defendant be deemed to have obtained a prescriptive right to carry on a nuisance?

Answer 32

1. Activity amounting to a nuisance carried on for 20 years
2. Someone in occupation on the land
3. No action was taken to stop the nuisance within the 20 years

Question 33

How must the courts interpret a statute if it is deemed to permit an actionable nuisance?

Answer 33

To ascertain exactly what nuisance has been permitted, and what, if any, remedies are available

Question 34

Is the grant of planning permission a defence to nuisance?

Answer 34

No

Question 35

Is the fact the nuisance already existed when the occupier took over the land a defence to nuisance, and what is the effect of this?

Answer 35

No!

It means the claimant has a cause of action against either the occupier in occupation when the nuisance began or the current occupier

Question 36

What are the three remedies available for nuisance?

Answer 36

1. Injunction
2. Damages
3. Abatement

Question 37

What is the defence of abatement?

Answer 37

A self-help remedy in which the claimant takes steps to stop the nuisance

Question 38

What is the limit on the steps the claimant can take?

Answer 38

No more than is necessary to stop the nuisance

Question 39

Where it is necessary for the claimant to enter the land of another to stop a nuisance, via abatement, what must the claimant do before?

Answer 39

Give notice and allow time for necessary remedial action to be taken

Question 40

When proper notice is given in an abatement situation, what is this a defence to?

Answer 40

An action in trespass to land brought by the person whose land you entered

Question 41

What is the rule in Rylands v Fletcher?

Answer 41

Strict liability is imposed when there is an escape of a dangerous thing from the defendant’s land in the course of a non-natural use of the land

Question 42

Therefore, what are the three elements for liability to arise under Rylands v Fletcher?

Answer 42

1. Defendant brings something onto their land likely to cause harm if it escapes
2. Defendant was engaged in a non-natural use of the land
3. The thing does escape and cause damage

Question 43

Does the thing brought onto the land have to be inherently dangerous?

Answer 43

No, just dangerous if it escapes. An unusal amount of Water would suffice to fulfill the this criteria.

Question 44

What is required of the use for it to be non-natural?

Answer 44

Defendant must be engaged in a special use of the land which carries an increased risk of danger to others

Question 45

Regarding damages, and the exact same as with nuisance, what is the key difference between Rylands v Fletcher and negligence?

Answer 45

Recovery for personal injury damage in negligence are not available in R v F, as it deals with interference with land

Question 46

What is required of the damage to be recoverable under Rylands v Fletcher?

Answer 46

It must be reasonably foreseeable as a consequence of escape

Question 47

What are the five defences available to liability under Rylands v Fletcher?

Answer 47

1. Escape caused by unforeseeable act of stranger
2. Act of God against which it is impossible to take precautions
3. Consent, express or implied
4. Contributory negligence
5. Statutory authority