5. Nuisance and Rylands v Fletcher

Question 1

What does the tort of private nuisance protect?

Answer 1

Land and interest in land

Question 2

What does the tort of private nuisance protect against?

Answer 2

Interference with land, both direct (physical damage) and indirect (substantial interference with enjoyment of land, e.g. from noise, smell, fumes, dust, vibrations, etc.)

Question 3

What is the distinction between the torts of private and public nuisance with respect to personal injury?

Answer 3

Private – personal injury cannot be claimed for

Public – personal injury can be claimed for

Question 4

What are the three types of actionable damage in the tort of private nuisance?

Answer 4

(1) Physical damage to land
(2) Substantial interference with use and enjoyment of land
(3) Encroachment onto neighbour’s land

Question 5

What are the five parts to a claim in the tort of nuisance?

Answer 5

(1) Unreasonable use of land
(2) Who can sue?
(3) Who can be sued?
(4) Defences
(5) Remedies

Question 6

Will every inconvenience amount to an actionable nuisance? Why?

Answer 6

No because the law recognises that there must be some ‘give and take’ between neighbours

Question 7

When will an inconvenience amount to an actionable nuisance? What is the case that sets this precedent?

Answer 7

When it materially interferes with the ordinary comfort of human existence, not merely according to elegant or dainty modes of living (Walter v Selfe)

Question 8

What is special about property damage in the tort of private nuisance? What is the case that sets this precedent?

Answer 8

Property damage will much more readily be seen by the courts as unreasonable and will not be subject to the reasonableness factors (St Helen’s Smelting Co v Tipping)

Question 9

What are the five factors courts take into account when determine the reasonable user of the land?

Answer 9

(1) The nature of the locality
(2) The duration of the nuisance
(3) Utility
(4) Abnormal sensitivity of the claimant
(5) Malice

Question 10

Briefly outline the principles of ‘the nature of the locality’ factor in the reasonableness test

Answer 10

e.g. a factory is less likely to be a nuisance in an industrial area than a residential one (Sturges v Bridgman)

The character of the locality can change (Gillingham BC v Medway (Chatham) Dock Co Ltd)

Planning permission is not a defence to nuisance (Coventry v Lawrence)

Question 11

What are the principles of ‘the duration of the nuisance’ factor in the reasonableness test?

Answer 11

The greater the frequency and length of the interference, the more likely it is to be unreasonable (Barr v Biffa)

A temporary but substantial interference will still be an actionable nuisance (De Keyser’s Royal Hotel v Spicer Bros)

Question 12

Will the utility of the activity causing a nuisance have any impact on whether the defendant is liable in the tort of nuisance?

Answer 12

No, but the court may find it influential when determining the remedy

Question 13

What cases set the precedent for an abnormally sensitive claimant? What is the principle?

Answer 13

Something that will only affect abnormally sensitive claimants will not be an actionable nuisance (Robinson v Kilvert)

If a nuisance is established, an abnormally sensitive claimant can claim for the full extent of their losses (McKinnon Industries v Walker)

Question 14

How has the law developed with regard to interference with technological equipment?

Answer 14

Bridlington Relay v Yorkshire Electricity Board (1965): TV was held to be a recreational activity and interference with this was not actionable

Network Rail v Morris (2004): court held that electronic equipment is a feature of modern life

Question 15

What is the court’s latest opinion on the idea of sensitivity of a claimant?

Answer 15

That it is outdates and should be replaced by foreseeability (Network Rail v Morris)

Question 16

How does malice affect whether an activity is an unreasonable use of land?

Answer 16

It is more likely to be unreasonable if activated by malice (Christie v Davey)

Question 17

Who can sue in the tort of nuisance?

Answer 17

Anyone with an interest in the land, but they cannot just be living with the owner (Hunter v Canary Wharf)

Question 18

Who can be sued in the tort of nuisance? Which cases provide the precedent for this?

Answer 18

(1) The creator of the nuisance
(2) A landlord, if they authorised the nuisance (Tetley v Chitty)
(3) The person who can control the occupier who created the nuisance (Cocking v Eacott)
(4) The person who continued a nuisance they adopted (Sedleigh-Denfield v O’Callaghan)

Question 19

Why is it difficult to sue a landlord for their tenant’s actionable nuisance? Give precedent.

Answer 19

The nuisance must be an inevitable or almost certain consequence of the letting, which is a hard test to satisfy (Coventry v Lawrence)

Question 20

How can a defendant who continued a nuisance they adopted be sued?

Answer 20

Nuisance is not an absolute liability tort

The claimant must prove that the defendant knew or ought to have known of the nuisance and failed to take steps to correct it

However, the defendant only has to do what is reasonable to remedy the nuisance (Goldman v Hargrave)

Question 21

What are the four defences to an action in the tort of nuisance?

Answer 21

(1) Statutory authority
(2) 20-year prescription
(3) Claimant changed the use of their land
(f) Act of a stranger or of nature

Question 22

What is the rule regarding statutory authority as a defence?

Answer 22

The statute must authorise the nuisance, i.e. the nuisance has to be the inevitable consequence of the operations undertaken under the statute (Allen v Gulf Oil Refining Ltd)

Question 23

When does the 20 years start in the defence of 20-year prescription?

Answer 23

When the claimant becomes aware of the nuisance activity (Sturges v Bridgman)

Question 24

What case sets the precedent for the defence of the claimant changing the use of their land?

Answer 24

Coventry v Lawrence

Question 25

What are the possible remedies available to the claimant in an action in the tort of private nuisance?

Answer 25

Injunction or damages

Question 26

What is an injunction?

Answer 26

An order restraining the defendant from committing further interferences

Question 27

When is an injunction awarded?

Answer 27

Prima facie unless the defendant can convince the court it should not be

Question 28

What are damages?

Answer 28

Compensation for loss of amenity or use value

Question 29

Does nuisance extend to pure economic loss? Give the precedent

Answer 29

No (Williams v Network Rail)

Question 30

What do the Shelfer criteria govern?

Answer 30

When damages can be awarded in lieu of an injunction

Question 31

What are the Shelfer criteria?

Answer 31

Damages may be awarded in lieu of an injunction where:

(i) the injury to C’s legal rights is actionable but small; and
(ii) is capable of being estimated in money; and
(iii) can be adequately compensated by a small money payment; and
(iv) the case is one in which is would be oppressive to D to grant an injunction

Question 32

What is the Supreme Court’s opinion on the Shelfer criteria? In which case did they express this opinion?

Answer 32

They believe the criteria are too strict, courts should be encouraged to award damages in lieu of an injunction, and the Shelfer criteria should not fetter the discretion of judges to do this

Coventry v Lawrence

Question 33

What is the rule in Rylands v Fletcher?

Answer 33

“the person who for his own purposes brings onto his land and collects and keeps there anything like to do mischief if it escapes, must keep it at his peril, and if he does not do so, is prima facie answerable for all damage which is the natural consequence of its escape”

Question 34

Briefly outline the facts of Rylands v Fletcher (1866)

Answer 34

C owned a colliery and D owned a nearby mill
D built a reservoir for that mill
Reservoir was built on five disused mine shafts, but the engineers did not realise these connected to C’s colliery
D was not negligent in building the reservoir because he employed contractors
When the reservoir was filled with water, everything collapsed and C’s colliery was flooded

Question 35

What was the decision and legal principle in Rylands v Fletcher?

Answer 35

D was liable for damage to C’s colliery

For the rule to apply, D must be making non-natural use of the land

Question 36

Briefly outline the facts of Cambridge Water v Eastern Counties Leather (1994)

Answer 36

D operated a tannery in which they used a particular chemical
Chemical spilt onto the floor of D’s factory and over time, seeped into the ground
It was carried by underground water flow for 1.3 miles, onto C’s land
Chemical got into C’s water supply and polluted it

Question 37

What was the decision and ratio in Cambridge Water v Eastern Counties Leather (1994)?

Answer 37

D not liable
Damage must be of a foreseeable kind to be claimable (to bring RvF in line with Wagon Mound (No 2))
Escape does not have to be foreseeable but the damage does

Question 38

What are the three elements to a claim under the rule in RvF?

Answer 38

(1) D must bring onto his land a dangerous thing that is likely to cause mischief if it escapes
(2) Escape
(3) Non-natural use of the land

Question 39

What was clarified in Standard v Gore?

Answer 39

D must bring the thing that caused mischief, e.g. not fire

Question 40

What was clarified in Read v Lyons?

Answer 40

The thing that causes damage or mischief must escape, i.e. the damage cannot occur on D’s land

Question 41

What is the definition of escape in terms of RvF?

Answer 41

Where a thing under D’s control on D’s land escapes from D’s land to a place outside of D’s control

Question 42

What is ‘non-natural use’ of land for the purposes of RvF?

Answer 42

A use that is extraordinary and unusual and creates an exceptional risk of harm

Question 43

Who can sue in RvF?

Answer 43

Someone with a right/interest in the relevant land

Question 44

Can a claimant sue for personal injury in RvF?

Answer 44

No (Transco plc v Stockport MBC)

Question 45

Who can be sued in RvF?

Answer 45

D who has accumulated a dangerous thing on his land, but D can be a licensee rather than an owner

Question 46

What are the two defences to an action of RvF?

Answer 46

Statutory authority

Act of God/nature/third party (as long as the act of the third party is unforeseeable)

Question 47

What are the remedies for an action in RvF?

Answer 47

Same as in the tort of private nuisance, although an injunction is less suitable since the escape has already occurred