6. Nuisance & Escape of dangerous things

Question 1

Define Private Nuisance

Answer 1

“an unlawful interference with a persons use or enjoyment of land or some right over, or in connection with it” (Winfield v Jolowicz)

PN involves balancing the competing interests of individuals

Question 2

Criteria for private nuisance

Answer 2

(1) parties to an action
(2) indirect interference
(3) unlawful (unreasonable) interference

Question 3

1. parties to an action

Answer 3

• legal right to bring action
• the person suing is capable of being a defendant

claimant:
- use/enjoyment of land
- affected by the interest
- legal interest in land (owner, occupier, holder of legal or equitable title) (Hunter v Canary Wharf)

defendant:
- creator of nuisance
- occupier is they adopt or continue activities of the creator
- landlord if they authorise of approve or the activities of the tenant (creator)

Question 4

2. indirect interference

Answer 4

(1) physical damage
- land, plants, crops, goods stored on land
- eg: gas destroying plants, dust, water damage
- NOT personal injury

(2) loss of amenity/enjoyment
- Cs ability to use or enjoy land is restricted by Ds activities
- eg: noise preventing sleep, unpleasant smells, fumes preventing opening windows

Question 5

3. unlawful (unreasonable) interference

Answer 5

private nuisance balances the conflicting interests of neighbours

activities are unlawful if the impact on the C is so unreasonable that they should not be expected to put up with it

objective test

court applies factors:
(a) locality
(b) duration
(c) degree
(d) sensitivity
(e) motive/malice

Question 6

(a) locality

Answer 6

wider range of activities are allowed in industrial areas than in residential/ rural areas (Sturges v Bridgman)
- “what would be a nuisance in Belgrave Squares would not necessarily be so in Bermondsey”

locality is irrelevant if there is physical damage (St Helen’s Smelting v Tipping)

can be an acceptable activity carried out in the wrong area (Laws v Florinplace)

Question 7

(b) duration

Answer 7

• how often it happens
• time of day

can be a single incident (Crown Ricer Cruises v Kimbolton)

can be temporary interference (De Keyers RH v Spicier Bros)

Question 8

(c) degree

Answer 8

how serious the nuisance is

if there is physical damage, it will be unreasonable

if there is loss of amenity/enjoyment, the court decides if the nuisance materially interferes with ordinary existence (Walter v Selfe) (Murdoch v Glacier Metal)

Question 9

(d) sensitivity

Answer 9

if C is using his property for an extra sensitive use he is not entitled to claim in circumstances where a reasonable use would not need protection

BUT if Ds activities would have interfered with an ordinary use of Cs land, C can claim (McKinnon v Walker)

Question 10

(e) malice/motive

Answer 10

D deliberately does something with no purpose other than to annoy C (Hollywood Silver Fox Farm v Emmett) (Christie v Davey)

Question 11

private nuisance: defences

Answer 11

1. Statutory authority
   - nuisance is created by a public body acting under a legislative duty or power
   - effectively authorised by parliament
   - ONLY if carried out without negligence and with reasonable regard to the interest of others
   - Allen v Gulf Oil
2. Prescription
   - D has carried out for the last 20 years without complaint = legal
   - Sturges v Bridgman
3. Planning permission
   - permission for the nuisance has already been granted = legal
   - Gillingham BC v Medway Dock
4. Volenti non fit injuria
   - claimant consents to the nuisance

NOT DEFENCES:
(1) “coming to a nuisance” - doenst matter if D was there before C (Sturges v Bridgman)
(2) C could have helped themselves
(3) D using reasonable care and skill
(4) nuisance partly caused by someone else

Social utility: doesn’t stop a nuisance being a nuisance, but mylar affect the remedy (eg damages rather than injunction)

Question 12

private nuisance: remedies

Answer 12

(1) Damages
- compensation for: physical loss, reduction in value, business loss (Fearn v Tate Gallery)
- remoteness test applies (Wagon Mound No1)

(2) Injunction
- an order strictly prohibiting or controlling an activity
- NOT for trivial matters
- NOT where there is social utility (limits)
- Miller v Jackson
- can be a partial injunction (Kennaway v Thompson)

(3) Abatement
- right of C to take reasonable steps to deal with nuisance

Question 13

leading case for escape of dangerous things

Answer 13

Rylands v Fletcher

Question 14

R v F escape of dangerous things: definition

Answer 14

D is liable if, on their land, they accumulate a dangerous thing in the course of a non-natural use of that land, and the thing escapes and causes reasonably foreseeable damage (Rylands v Fletcher)

strict liability tort

NOT for personal injury

Question 15

R v F escape of dangerous things: criteria

Answer 15

1. parties to action
2. accumulation
3. a dangerous thing
4. non-natural use
5. escape
6. reasonably foreseeable damage

Question 16

1. parties to action

Answer 16

Claimant: has a legal interest in the land affected by the escape
- eg, owning or renting land

Hunter v Canary Wharf

Question 17

2. accumulation

Answer 17

D voluntarily brings onto their land an accumulation of the substance which escaped

accumulation = gathering together of a large amount of material

accumulation must be artificial (Giles v Walker)

D must control land

Question 18

3. a dangerous thing

Answer 18

likely to do mischief is it escapes (Rylands v Fletcher)

eg, chemicals, explosives, fumes, flagpole

poses an ‘exceptional risk’ if it escapes (Transco v Stockport MBC)

Question 19

4. non-natural use

Answer 19

Rylands v Fletcher

abnormal and unreasonable use Rickards v Lothian

‘extraordinary and unusual’ (Transco v Stockport MBC)

certain activities may always lead to a potential level of danger which amounts to a non-natural use (even if there is public benefit)

Cambridge Water v ECL

Question 20

5. escape

Answer 20

the dangerous thing must escape

the substance moved from land that D controls (or occupies) to land that they do not (Read v Lyons)

FIRE:
- usually fails to meet requirements (Stannard v Gore)
- may be exceptions eg fire moving from an anointing property

Question 21

6. reasonably foreseeable damage

Answer 21

only liable for damage that is reasonable foreseeable (Cambridge Water v ECL)

only damage to land and goods stored on land , NOT personal injury (Rylands v Fletcher)

Question 22

R v F: defences

Answer 22

(1) Act of a stranger
- escape caused by deliberate and unforeseen act of a stranger (D had no control)
- Perry v Kendricks Transport

(2) Act of God
- natural event so enormous that it cannot be foreseen or guarded against
- nothing D can do to stop it
- Nichols v Marsland

(3) Statutory Authority
- escape occurs during activities authorised by an act of parliament
- ONLY if no negligence
- Green v Chelsea Waterworks

(4) Volenti non fit injuria
- C consents to the thing D accumulates

(5) Common benefit
- the source of a potential danger is something maintained for the benefit of both C and D

(6) fault of C
- escape is caused by C