9 - Torts Related To Land (Nuisance)

Question 1

What legal options are available to a claimant when a complaint involves land, and how is private nuisance distinguished from other related torts?

Answer 1

If a claimant’s complaint relates to something occurring in relation to land, there are several torts available to consider:

Private nuisance: The most important tort in practice for land-related complaints, protecting individuals in their enjoyment of their own property.

Rule in Rylands v Fletcher: A specialised form of private nuisance with its own rules, also considered within this area.

Public nuisance: Primarily aimed at protecting the public in the exercise of public rights (e.g., the right to use highways without obstruction), although individuals may, in some circumstances, claim damages in the civil courts for harm suffered.

Question 2

How is private nuisance defined, and what must a claimant demonstrate to establish it?

Answer 2

Private nuisance is a ‘judicially approved definition’ describing ‘unlawful interference with a person’s use or enjoyment of land, or some right over, or in connection with it’.

To establish a claim in private nuisance, the claimant must show:
- Interference: There is interference with the claimant’s use and enjoyment of their land, or some rights they enjoy over it.
- Unlawfulness: This interference is deemed unlawful.

Question 3

What are the three types of interference within private nuisance as identified in Hunter v Canary Wharf [1997] AC 655, and how do they impact the claimant’s enjoyment of their land?

Answer 3

In Hunter v Canary Wharf [1997] AC 655, three types of interferences within private nuisance were identified:
1. Nuisance by encroachment on a neighbour’s land.
2. Nuisance by indirect physical injury to a neighbour’s land.
3. Nuisance by interference with a neighbour’s quiet enjoyment of their land (often known as an interference with personal comfort or loss of amenity).

Key points about interference with quiet enjoyment:
- This type of interference can include smells, dust, vibration, and noise.
- It also covers rights enjoyed over land, such as a right to light acquired by prescription.
- However, courts are typically slower to find actionable nuisances based on personal discomfort than with actual damage to property or encroachment.

Not all interferences qualify as actionable:
- Only interferences that materially impact ‘ordinary comfort’ (not ‘elegant or dainty modes of living’) are actionable.
- For example, loss of view from a property (Aldred’s Case (1610)) and disruption to TV reception (Hunter v Canary Wharf) were not considered actionable interferences.

Question 4

What does it mean for an interference to be ‘unlawful’ in private nuisance, and how do courts determine if an interference meets this standard?

Answer 4

Unlawful interference in private nuisance requires the interference to be ‘unreasonable’.
- This does not generally mean criminal, although sometimes the conduct may also constitute a crime.
- Not all interferences are actionable; minor disturbances like regular noise or smells are often deemed acceptable in daily life.
- Unlawful therefore implies substantial and unreasonable interference.

Balance of rights: In Sedleigh-Denfield v O’Callaghan [1940] 3 All ER 349, it was noted that a balance must be struck between:
- The right of the occupier to use their land as they wish, and
- The right of their neighbour to enjoy their own land free from unreasonable interference.

The test for reasonableness often considers what is typical for society, or specifically, the particular community in question.

Automatic unlawfulness for encroachment:
- Encroachment onto a neighbour’s land, such as overhanging tree branches, is generally considered unlawful without any further consideration.

Question 5

: What factors do courts consider in determining whether an interference is substantial and unreasonable (unlawful) in private nuisance?

Answer 5

Courts examine various factors to decide if an interference is substantial and unreasonable, and thus unlawful.

• This includes duration and frequency, excessiveness of conduct/extent of the harm, character of the neighbourhood (not relevant where there is physical damage), public benefit, malice, and abnormal sensitivity.
• None of these factors are conclusive on their own; they help the court to balance interests.
• The focus is on whether the defendant’s use of land has unreasonably interfered with the claimant’s reasonable use of their land.
• Importantly, the test is not whether the defendant’s conduct itself was unreasonable but whether the interference is unreasonable. Unlike in negligence, the reasonable person standard does not apply here.

Question 6

How do the factors of duration and frequency impact a court’s determination of unlawfulness in private nuisance?

Answer 6

Duration:
- The overall length of an interference plays a significant role. The longer the interference lasts, the more likely it is the court will find it unreasonable.
- Short-term interferences generally require tolerance from the claimant.

Frequency:
- The regularity of interference is also relevant.
- Example: If cricket balls land in a claimant’s garden only twice a summer, it’s unlikely to be unlawful, but if they land frequently (e.g., 10 balls every Saturday), it may constitute nuisance.

Some continuity and frequency are generally needed to establish an unlawful interference.
An isolated incident typically won’t result in liability unless it stems from an ongoing state of affairs on the defendant’s land.

Question 7

In private nuisance cases, how does the excessiveness of the defendant’s conduct and the extent of harm affect the court’s assessment of unlawfulness?

Answer 7

Excessiveness of conduct:
- The court assesses how excessive the defendant’s conduct is compared to ‘normal’ standards, viewed objectively.
- Example: If a defendant plays extremely loud music daily, it is more likely the interference will be considered unreasonable.

Extent of harm:
- The impact on the claimant is also crucial and is considered subjectively.
Example: If the claimant is not at home when the interference occurs (e.g., loud music), the court may find the impact on their enjoyment of the property minimal.

An interference that causes physical damage to the claimant’s land usually tips the balance in favour of finding unlawfulness, unless the damage is trivial.

Question 8

What role does the character of the neighbourhood play in assessing the unlawfulness of an interference in private nuisance cases?

Answer 8

Character of the neighbourhood is relevant when interference causes personal discomfort and inconvenience but not physical damage.

Standards for interference vary by location; urban areas may tolerate more noise, while rural areas may expect agricultural smells.

In Coventry v Lawrence [2014] UKSC 13, the Supreme Court clarified that:
- When assessing neighbourhood character, the defendant’s activities are relevant but only insofar as they would not cause a nuisance.
- If activities inherently create a nuisance or breach planning permission, they are disregarded in assessing the neighbourhood’s character.

Question 9

How does public benefit influence the court’s assessment of an interference’s reasonableness in private nuisance cases?

Answer 9

Defendants sometimes argue that their activity is reasonable because it benefits the public (e.g., a chip shop with odours providing food to a community).
- Courts, however, consistently rule that public benefit does not override an individual’s private rights.
- Public benefit is not relevant in deciding whether the defendant’s use is unreasonable but may be considered when determining whether to grant an injunction or another remedy.

Question 10

How is malice relevant in determining whether an interference is unreasonable in private nuisance?

Answer 10

Malice (spite or improper motive) is relevant in assessing whether interference is unreasonable.
- Example: In Hollywood Silver Fox Farm v Emmett [1936], the defendant’s shooting was done with the sole purpose of disturbing the claimant’s foxes during breeding time.
- Courts are likely to view an interference carried out with malicious intent as unreasonable, potentially tipping the balance in the claimant’s favour where it otherwise may have been lawful.

Question 11

How does abnormal sensitivity affect a claim in private nuisance?

Answer 11

Abnormal sensitivity refers to a situation where the claimant’s property is unusually vulnerable to interference, impacting the success of a nuisance claim.
- In Robinson v Kilvert (1889), the claimant’s stock of brown paper, which was unusually sensitive because it was sold by weight, was damaged by the defendant’s heating system. The claim failed as the interference would not have affected ‘normal paper.’

Courts assess if the interference would impact the normal user of neighbouring land, ignoring any abnormal sensitivity of the claimant.
- If the interference would affect normal land use, a nuisance could be established, and the claimant can recover for all their loss, even if greater due to abnormal sensitivity.
- Example: In McKinnon Industries v Walker (1951), the claimant’s sensitive orchids were damaged by fumes. Since the fumes would also harm ordinary plants, a nuisance was actionable, allowing the claimant to recover for the orchid damage. This is an application of the ‘egg-shell rule’.

Question 12

Who can sue in private nuisance according to Hunter v Canary Wharf [1997]?

Answer 12

In Hunter v Canary Wharf [1997], the House of Lords established that only those with a right to exclusive possession of land can sue in private nuisance. Exclusive possession means the right to exclude everyone else:
- Owner-occupiers have the best right due to their proprietary interest in the land.
- Tenants also have a right to exclusive possession via their leasehold title.

Those without exclusive possession rights cannot sue in private nuisance:
- Children of an owner-occupier, guests, or hotel guests lack this right and thus cannot bring a claim.

In summary, to sue in private nuisance, a claimant must have a proprietary interest in the land, signifying the right to exclusive possession. Occupants without this right cannot sue in nuisance.

Question 13

Who are the potential defendants in a private nuisance claim?

Answer 13

The three potential defendants in private nuisance are:
- The creator of the nuisance – the person who originally caused the nuisance.
- The occupier of the land – the current occupier, who may be liable for nuisances they create or allow.
- The landlord – generally not liable, but certain exceptions may apply.

Question 14

When is the creator of a nuisance liable in a private nuisance claim?

Answer 14

The original creator of a nuisance is liable even if they no longer occupy the land where the nuisance occurs:
- They remain responsible as they committed the initial wrong, which can cause ongoing damage.
- Example: If a former landowner installed a water feature that later damages a neighbour’s property due to a leak, the neighbour can sue the original creator, regardless of current ownership.
- If the creator is unavailable or financially non-viable to sue, the claimant must look to the current occupier for a remedy.

Question 15

When is the occupier of land liable in a private nuisance claim?

Answer 15

The occupier of land is the usual defendant and may be liable for nuisances in the following scenarios:

Direct creation of the nuisance, whether by action or failure to maintain property.

Liability for others who create nuisances in certain cases:
- Employees acting within their employment – the occupier is liable under vicarious liability.
- Independent contractors, if the work inherently risks nuisance.
- Visitors, predecessors, trespassers, or natural occurrences, if the occupier has adopted or continued the nuisance.

Example: In Sedleigh-Denfield v O’Callaghan (1940), the defendant occupier continued using a trespasser-installed pipe that caused flooding. By failing to take reasonable steps to prevent the nuisance, the occupier was found liable.

Question 16

When is the occupier of land liable for the nuisance created by a trespasser?

Answer 16

As identified in Sedleigh-Denfield v O’Callaghan [1940] 3 All ER 349:

The claimant succeeded because the defendant was aware of the nuisance and failed to take any reasonable steps. The court held that an occupier is liable for a nuisance created by a trespasser if:
- The occupier has either ‘adopted’ or ‘continued’ the nuisance;
- Occupiers ‘adopt’ a nuisance if they make use of the thing which constituted the nuisance;
- Occupiers ‘continue’ a nuisance if, once they know or ought reasonably to know of its existence, they fail to take reasonable steps to end the nuisance.

Although case law has not categorically decided the point, it is thought that when considering
what are ‘reasonable steps’ for the purposes of ending a nuisance, the courts will take into
account the defendant’s actual financial resources.

Although the Sedleigh- Denfield case concerned a nuisance created by a trespasser, the same
approach has been used in cases where the nuisance is created by visitors, predecessors in
title and natural events.

Question 17

Under what circumstances is a landlord liable in a private nuisance claim?

Answer 17

While landlords are generally not liable for nuisances caused by tenants, exceptions include:

• Authorisation of the nuisance: If the nuisance is an inevitable result of the letting, the landlord is liable.
  Example: In Tetley v Chitty (1986), a council let land to a go-kart club, and the noise nuisance was inevitable due to its use as a racing track.
• Pre-existing nuisance: If the nuisance was present at the start of the lease, and the landlord knew or should have known about it.
• Covenant to repair: If the landlord promised or has the right to enter to make repairs and fails to do so, creating a nuisance.
  This, however, does not exonerate the tenant who may also be liable as the occupier.

Question 18

What must a claimant prove to establish damage in a private nuisance claim, and what might the defendant be liable for if this is proven?

Answer 18

To establish damage in a private nuisance claim, the claimant must prove that they have suffered actual damage.

This can include:
- Physical damage to land or buildings, including crops or plants as they are part of the land.
- Interference with quiet enjoyment of the land, which falls under nuisance, even though it is not “tangible” damage as required in negligence claims.

However:
- Personal injury is not recoverable under private nuisance; the correct cause of action for such claims is negligence.
- Damage to personal property (e.g., personal belongings) is likely outside the scope of private nuisance, as suggested by Hunter v Canary Wharf, although some cases have allowed recovery where discomfort from nuisance causes such losses.

If recoverable damage is proven (property damage or personal discomfort), the defendant may also be liable for consequential losses such as loss of profits if the nuisance disrupts normal business operations.

Question 19

What must a claimant prove regarding causation and remoteness of damage in a private nuisance claim?

Answer 19

To establish causation and remoteness in private nuisance, the claimant must show that:

Unlawful interference caused the damage, using the usual causation tests such as the “but for” test and rules on intervening acts.

Remoteness of damage applies, meaning only damage reasonably foreseeable at the time is recoverable. This was affirmed in Cambridge Water Co v Eastern Counties Leather plc (1994), which applied the Wagon Mound test for foreseeability of damage, similar to negligence.

Question 20

What distinguishes effective defences from ineffective defences in private nuisance?

Answer 20

In private nuisance, it is essential to distinguish between:
- Effective defences: These are defences that will enable the defendant to escape liability for the nuisance claim.
- Ineffective defences: These are defences that, although often argued, will not successfully absolve the defendant of liability.

Question 21

What are the main effective defences available under private nuisance claims?

Answer 21

The main effective defences include:
- Prescription
- Statutory authority
- Contributory negligence
- Consent
- Act of God or nature
- Necessity

Question 22

How does the defence of prescription apply in private nuisance?

Answer 22

The defence of prescription arises if the defendant can show:
- They have been continuing the nuisance for a period of at least 20 years against the claimant.
- This defence indicates that the defendant has ‘acquired’ the right to commit the nuisance.

However, the defence is rarely available because:
- The interference must have been actionable by the particular claimant for at least 20 years.

Example: If Anita has lived next to a factory for five years, and the factory has regularly emitted noxious fumes for 30 years, the defence of prescription will not apply since the nuisance has only been actionable by Anita for five years.

Example: In Sturges v Bridgman, Mrs Ali has been making sweets for more than 20 years using large pestles and mortars. However, Dr Khan only discovers the nuisance when he builds a consulting room in his garden, meaning Mrs Ali cannot rely on prescription, as her activities were not an actionable nuisance for the entire 20 years, only once Dr Khan had built his consulting suite.

Question 23

What is the defence of statutory authority in private nuisance claims?

Answer 23

The defence of statutory authority applies when:
- A statute permits a defendant to commit a nuisance.
- The defendant must demonstrate that the nuisance was an inevitable result of doing what the statute authorised.

This defence is unlikely to be available to private individuals and is most useful to public authorities acting under statutory powers.
- Example: An oil company authorised by an Act of Parliament to construct an oil refinery is likely to successfully plead statutory authority as a defence against local residents’ complaints about noise and vibrations, since these nuisances are considered inevitable due to the operation of the refinery.

Question 24

When can contributory negligence be a defence in private nuisance?

Answer 24

Contributory negligence serves as a partial defence in private nuisance claims, where:
- The usual principles of contributory negligence apply, meaning the claimant’s own actions or negligence may reduce the defendant’s liability.
- If the claimant has contributed to their own harm, it may affect the outcome of the claim.

Question 25

How does the defence of consent apply in private nuisance claims?

Answer 25

The defence of consent applies when:
- The defendant can show that the claimant has specifically agreed to accept the interference caused by the nuisance.
- If established, this leads to the claimant’s claim in nuisance failing.

Example: If Mike agrees to let Anne put her garden rubbish on his bonfire each week, and the smoke from the bonfire blows across Anne’s garden to such an extent that it constitutes a nuisance, she would likely be met with the defence of consent because she agreed to the arrangement.

Question 26

What role does “Act of God or nature” play as a defence in private nuisance?

Answer 26

The Act of God or nature is not strictly a defence but relates to:
- The circumstances in which an occupier can be liable for natural events occurring on their land.
- If an interference results from a ‘secret unobservable process of nature’ (e.g., subsidence) or from an act of God (e.g., lightning), the defendant will not be liable for nuisance unless they adopt or continue the nuisance

Question 27

When is the defence of necessity available in private nuisance claims?

Answer 27

The defence of necessity is available in private nuisance claims when:
- A situation of necessity exists due to an imminent danger to life and limb (or, in very limited circumstances, a threat to property).
- The defendant’s actions must be reasonable in all the circumstances.

This defence cannot be relied upon if the circumstances giving rise to necessity were of the defendant’s own making, meaning it cannot be used if the defendant was negligent.

Example: In Southport Corporation v Esso Petroleum, the defendant’s oil tanker ran aground, creating a risk of breaking up and endangering lives. The master discharged 400 tons of oil into the sea to prevent this. Although a nuisance was committed due to the pollution, the defence of necessity succeeded, and the defendants were absolved of liability because they acted to protect life and limb

Question 28

Why is the argument that the claimant ‘came to the nuisance’ ineffective in private nuisance claims?

Answer 28

The argument that the claimant ‘came to the nuisance’ is ineffective because:
- A claimant can sue in private nuisance for issues like noise and fumes even if they knew about these nuisances when purchasing their property.
- This rule prevents unreasonable use of land from blocking property sales, ensuring it does not restrict the property market or public interest.
- In Coventry v Lawrence [2014] UKSC 13, the Supreme Court ruled that if a claimant uses their property for essentially the same purpose as their predecessors before the nuisance started, the defendant cannot claim the claimant ‘came to the nuisance’.
- However, if a claimant alters their property or changes its use after the nuisance has started, their claim may fail.
- While generally no defence exists for this argument, a court may consider it as a relevant factor when deciding whether to grant an injunction.

Question 29

How does the public benefit of a defendant’s activity impact their defence in nuisance claims?

Answer 29

The public benefit of a defendant’s activity does not provide a valid defence in nuisance claims because:
- Courts will not absolve the defendant of liability solely based on the beneficial nature of their activity.
- However, the court may consider the public benefit when deciding whether to grant an injunction, weighing the nuisance against the wider public interest.

Question 30

Why is it ineffective for a defendant to argue that contributory actions of others caused the nuisance?

Answer 30

It is ineffective for a defendant to argue that the nuisance results from the contributory actions of others because:
- The defendant cannot claim that their actions alone do not constitute an actionable nuisance.
- Each party contributing to the nuisance can be held liable.
- Example: If multiple stalls at a fair play music and collectively create a nuisance, each stallholder is liable for their contribution to the nuisance.

Question 31

How does planning permission relate to defences for private nuisance claims?

Answer 31

Planning permission is not an effective defence in private nuisance claims because:
- The courts hold that only Parliament can remove private rights to sue, meaning that local authorities granting planning permission do not legitimise a nuisance.
- In Wheeler v Saunders [1995] 2 All ER 697, a farmer could not defend against nuisance claims from nearby holiday cottage owners simply by stating they had obtained planning permission to build a pig unit.

Nonetheless, planning permission can change the character of the neighbourhood, influencing whether an interference is deemed unlawful:
- In Gillingham BC v Medway Docks Co Ltd [1992] 3 WLR 449, the court determined that when assessing whether local noise was unlawful, it should consider the character of the area after planning permission was granted, not before.
- In Coventry v Lawrence [2014] UKSC 13, it was established that if planning permission includes conditions on noise frequency and intensity, these conditions may be relevant in assisting the claimant’s action in private nuisance.

Question 32

What are the principal remedies available in private nuisance claims, and how do they operate?

Answer 32

The two principal remedies available in private nuisance claims are:

Damages:
- Awarded for any loss which the claimant has already suffered by the date of trial.
- Can receive damages for physical damage to the claimant’s land or personal discomfort.
- The court has a limited power to award damages for future loss.

Injunction:
- An order from the court regulating the defendant’s activities to prevent future nuisances.

Example: Jeremy, who owns a house opposite an oil depot, intends to sue in private nuisance for the following problems occurring over five years:
- Acid smuts from a boiler in the depot damaging plants in his garden.
- An unpleasant smell emanating from the oil.
- Noise from the boilers at the depot at night.
- Noise from lorries at the depot at night.

Jeremy will seek:
- Monetary compensation (damages) to compensate him for these interferences with the use and enjoyment of his land.
- An injunction to regulate the oil depot’s activities.

Question 33

How are damages calculated for physical damage to the claimant’s land in nuisance claims?

Answer 33

Damages for physical damage to the claimant’s land are calculated as follows:

Awarded to reflect:
- The cost of repairing the damage to the land, including buildings and plants growing on it.
- If repair is not feasible, damages will reflect the loss in value of the affected land in question.

Question 34

How is personal discomfort assessed for damages in private nuisance claims?

Answer 34

Personal discomfort in private nuisance claims is assessed by:

Recognising that the value of personal discomfort is more challenging to determine.

In Hunter v Canary Wharf, it was suggested that personal discomfort should be valued by:
- Looking at the loss of amenity value of the land.
- This involves comparing the land with the nuisance to the land without the nuisance.

Claimants often want damages to compensate for the defendant’s conduct to date, and if the interference is continuing, they will also seek an injunction to regulate the defendant’s future conduct.

Question 35

What is the purpose of an injunction in private nuisance claims?

Answer 35

An injunction is an order of the court that restrains the commission of or continuance of some wrongful act in the future.

Injunctions are often sought in nuisance claims to stop the defendant’s unlawful interference from continuing.

Unlike negligence claims, where events are past and damages are the appropriate remedy, injunctions can be granted in nuisance claims.

Question 36

What types of injuction are available in private nuisance claims?

Answer 36

Types of injunctions available include:

Prohibitory Injunction:
- Forbids the defendant from continuing a wrongful act.

Mandatory Injunction:
- Orders the defendant to take positive action to rectify the consequences of their actions.
- Granted less readily than prohibitory injunctions.

Quia Timet Injunction:
- Granted in anticipation of the commission of the tort to prevent potential damage to the claimant.

To obtain this type of injunction, the claimant must show:
- They are almost certain to incur damage without the injunction.
- Such damage is imminent.
- The defendant will not cease their conduct without the court’s order.

Question 37

How does the court decide whether to grant an injunction in nuisance cases?

Answer 37

The court has discretion in granting injunctions, considering all circumstances of the case.

• An injunction will not be awarded if damages would suffice as an adequate remedy.
• Damages address past breaches, while injunctions prevent future breaches.
• If the claimant establishes a prima facie case for an injunction, the court decides on the exercise of discretion. If the court opts not to grant the injunction, it can instead award damages covering future breaches.

Guidelines from Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287 inform the court’s discretion to refuse an injunction and grant damages instead, based on the following criteria:
The harm suffered by the applicant is:
- Small.
- Quantifiable in financial terms.
- Adequately compensated by damages.
- Granting the injunction would be oppressive to the defendant.

If a monetary sum compensates the claimant adequately, the court will generally not grant an injunction.

Question 38

What considerations may influence the court’s decision regarding injunctions in nuisance cases?

Answer 38

The court’s decision regarding injunctions in nuisance cases may be influenced by:

The public interest, including factors such as:
- Potential job losses for the defendant’s employees if an injunction is granted.
- Whether other neighbours, in addition to the claimant, are adversely affected by the nuisance.

If the nuisance has been previously authorised through planning permission, this may lead the court to determine that awarding damages rather than an injunction is in the public benefit.

Example: The Supreme Court in Coventry v Lawrence [2014] UKSC 13 stated that the application of the Shelfer guidelines should not restrict the court’s discretion. Even if the four tests for damages are not satisfied, this does not obligate the court to grant an injunction.

Question 39

What is abatement in the context of private nuisance, and how does it work?

Answer 39

Abatement is a remedy for private nuisance involving the removal of the interference by the victim.

The key points regarding abatement include:

Removal by the Victim: The victim must normally take action to remove the nuisance themselves.

Prior Notice Requirement: The victim usually must give prior notice to the wrongdoer before taking action, except in:
- Emergencies.
- Situations where the nuisance can be abated (removed) without entering the wrongdoer’s land.

Example: If Samir’s neighbour Terry has tree branches overhanging Samir’s drive, making it difficult for Samir to get his car in and out of his garage:
- Rather than suing Terry for private nuisance, Samir approaches Terry for a resolution.
- When Terry refuses to address the issue, Samir can cut down the overhanging branches himself, exercising the remedy of abatement (self-help).
- Samir does not need to notify Terry in advance because he does not need to enter Terry’s land to remove the nuisance.
- However, it is important to note that the branches still belong to Terry and must be returned to him once they have been cut.

Question 40

What are the principal differences between private nuisance and negligence?

Answer 40

The principal differences between private nuisance and negligence include:

Claimant’s Interest:
- In private nuisance, only those with a proprietary interest in the affected land can sue.
- In negligence, the class of potential claimants is wider; no need to show interference with land.

Continuity Requirement:
- Private nuisance requires some continuity of interference; isolated incidents typically do not constitute a claim.
- Negligence does not require continuity; a single act or omission is sufficient for liability.

Reasonableness:
- In nuisance claims, the focus is on whether the defendant’s use of land is unreasonable.
- In negligence claims, the focus is on whether the defendant’s act falls below the standard of a reasonable person.

Financial Means Consideration:
- Courts may consider the defendant’s financial means in private nuisance cases related to naturally arising hazards.
- Financial resources are generally irrelevant in negligence cases regarding breach of duty.

Liability Despite Reasonable Care:
- A defendant can be liable in private nuisance even if they have exercised reasonable care; the issue is whether land use is reasonable.
- In negligence, liability occurs only if the defendant falls below the reasonable person’s standard.

Types of Damage:
-jjjte nuisance allows claims for both tangible and intangible damage (e.g., personal discomfort from noise).
Intangible damage is insufficient for negligence claims, as personal discomfort from noise or smells does not constitute ‘damage.’

Personal Injury Consideration:
Following Hunter v Canary Wharf Ltd [1997] 2 All ER 426, personal injury no longer falls within the scope of private nuisance, representing a significant distinction from negligence.

Remedies:
An injunction is a potential remedy for private nuisance claims.
Injunctions are not available as a remedy in negligence claims.

Question 41

What is the rule in Rylands v Fletcher?

Answer 41

The rule in Rylands v Fletcher (1868) LR 3 HL 330 creates a tort covering situations where there is an escape of something dangerous due to a non-natural use of land. The key points include:

Strict Liability: The occupier of the land is liable for the damage caused by the escape, irrespective of fault. This means there is no need to prove that the occupier failed to take reasonable care or was an unreasonable user of their land.

Type of Private Nuisance: This rule acts as a type of private nuisance, protecting claimants from interferences due to isolated escapes from a neighbour’s land.

Similarities to Private Nuisance: The rules regarding who can sue, who can be liable, the types of damage recoverable (notably, personal injury is not a harm protected by this tort), the defences available, and the remedies are essentially the same as those in private nuisance.

Question 42

What are the key elements of the rule in Rylands v Fletcher?

Answer 42

• The defendant brings onto their land for their own purposes something likely to do mischief.
• This item escapes from the defendant’s land.
• The use of land is non-natural.
• The escape causes foreseeable damage of the relevant type.

Question 43

What must a defendant bring onto their land for the rule in Rylands v Fletcher to apply, and what constitutes something likely to do mischief?

Answer 43

For the rule in Rylands v Fletcher to apply, the defendant must bring onto their land for their own purposes something likely to do mischief.

The thing or substance does not need to be dangerous but must be capable of causing damage if it escapes.

Examples of things likely to cause damage if they escape include:
- Water
- Cattle
- Sewage
- Fumes
- Electricity

In Transco v Stockport Metropolitan Borough Council [2003] UKHL 61:
- Water escaped from a pipe belonging to the defendant local authority, causing a nearby railway embankment to collapse, which put the claimant’s gas pipe at risk.
- The claimant sought costs for remedial measures, arguing that liability existed without proving negligence.
- The House of Lords held that the claimant must show that the defendant recognised, or ought to have recognized, a risk of mischief that was exceptionally high, resulting in the claim failing.

Question 44

How does the requirement for an escape differ under the rule in Rylands v Fletcher compared to private nuisance?

Answer 44

The rule in Rylands v Fletcher requires an escape of a ‘thing likely to do mischief’ and differs from private nuisance in the following ways:
- It applies to isolated escapes from land, whereas private nuisance requires continuity and frequency for an interference to be deemed unlawful.
- The necessary requirement for an escape is that the damaging substance must move from the defendant’s premises to a location outside their control.

This was confirmed in Stannard (t/a Wyvern Tyres) v Gore [2012] EWCA Civ 1248:
- Tyres caught fire on the defendant’s land, spreading to both the claimant’s and the defendant’s premises.
- The claim failed because the tyres themselves had not escaped, as the fire had not been brought onto the defendant’s land and then escaped.

Question 45

What constitutes a non-natural use of land under the rule in Rylands v Fletcher?

Answer 45

The rule in Rylands v Fletcher applies only when the item causing damage by its escape is not ‘naturally’ on the defendant’s land.

The leading case on non-natural use is Transco v Stockport Metropolitan Borough Council, where the House of Lords determined:
- The use of land must be extraordinary or unusual by contemporary standards.
- Normal industrial purposes are generally considered a natural use.

For instance:
- A factory producing bicycles is an ordinary use.
- A producer of explosives would be deemed an extraordinary use.

Question 46

What is the significance of foreseeable damage in the context of the rule in Rylands v Fletcher?

Answer 46

The requirement that the escape causes foreseeable damage of the relevant type was added by Cambridge Water Co Ltd v Eastern Counties Leather Plc. Important aspects include:
- This requirement introduced the remoteness principle from negligence, particularly from The Wagon Mound (No 1), as part of the rule in Rylands v Fletcher.

Example: In Cambridge Water Co Ltd v Eastern Counties Leather Plc: The claimant was unsuccessful because the damage was not reasonably foreseeable and was considered too remote from the defendant’s actions.

Question 47

What losses are recoverable in the rule in Rylands v Fletcher?

Answer 47

Losses recoverable are property damage and consequential economic loss.

Question 48

What are the key defences available to a defendant under the rule in Rylands v Fletcher?

Answer 48

Unforeseeable Act of a Stranger: The defendant is not liable if they could not have reasonably foreseen the act of the stranger that caused the escape.

Act of God: The defendant is not liable for damage caused by an extraordinary act of nature that could not have been reasonably foreseen.

Statutory Authority: This defence applies when the defendant’s actions are authorised by legislation, as considered in the context of private nuisance.

Consent (Voluntary Assumption of Risk): The claimant may be deemed to have accepted the risk of harm voluntarily.

Contributory Negligence: The defendant may argue that the claimant’s own negligence contributed to the harm.

Question 49

What remedies are available under the rule in Rylands v Fletcher?

Answer 49

The same remedies are available as for private nuisance, namely damages and injunctions.

Damages are the most common remedy given that the types of loss recoverable in Rylands v Fletcher are property damage and consequential economic loss and Rylands v Fletcher covers isolated events.

Question 50

What is the definition of public nuisance, and who is primarily responsible for its enforcement?

Answer 50

Public nuisance is defined as:
- An act or omission that endangers the life, health, property, or comfort of the public.
- It obstructs the public in the exercise or enjoyment of rights common to all His Majesty’s subjects
- Public officers or bodies, such as the Attorney General or local authorities, are primarily responsible for the enforcement of public nuisance laws.

Question 51

How can public nuisance give rise to tortious liability, and what are the essential elements that must be proven?

Answer 51

Public nuisance can give rise to tortious liability in certain circumstances:
- It may be used by individuals who have suffered particular harm to claim damages in the civil courts.
- It can be used in cases of personal injury.

The essential elements of the tort of public nuisance are:
- Conduct that materially affects the reasonable comfort and convenience of a ‘class of Her Majesty’s subjects’.
- The claimant has suffered particular harm due to this conduct.

Question 52

Who can sue in public nuisance, and who can be sued?

Answer 52

Who can sue? -
(1) An individual.

(2) A Local Authority: if the authority has suffered damage it may sue on its own behalf. It may also sue in its own name to protect the inhabitants of its area.

(3) The Attorney General: where a class of people are affected by the public nuisance and no individual action is possible or forthcoming, the Attorney General may bring the claim on the class’s behalf in their name.

Who can be sued?
An action in public nuisance is sufficiently rare for there to have been little judicial debate over the issue of who may be sued. The tortfeasor is usually easily identifiable. Case law indicates that the creator of the nuisance or any person who is ‘responsible’ for the nuisance (e.g. an owner/occupier) may be sued.

Question 53

How is unreasonable conduct in public nuisance defined regarding its impact on the reasonable comfort and convenience of a class of His Majesty’s subjects?

Answer 53

A key difference between public and private nuisance is that:
- Public nuisance affects ‘His Majesty’s subjects’ generally, whereas private nuisance only impacts particular individuals.
- The determination of how many people in a locality must be affected to constitute a class of the public is a question of fact in each case.
- It is not necessary for every member of the class to be affected; rather, a representative cross-section must have experienced the impact.

Example: If a restaurant collects a large quantity of putrefying food waste, the householders nearest to it may suffer the most from the smell, but everyone in the neighbourhood is also affected. In this situation, the Attorney General could initiate proceedings for an injunction to restrain the nuisance, acting in defence of the public right rather than individual interests.

Question 54

What must a claimant demonstrate regarding particular harm to succeed in a public nuisance claim?

Answer 54

A claimant wishing to bring a claim in the tort of public nuisance must have suffered:
- ‘Particular’ damage that exceeds what the public at large experiences.
- This can include various forms of harm, such as property damage, loss of profit, and importantly, personal injury, which distinguishes it from private nuisance and the rule in Rylands v Fletcher.

Example: For instance, a car driver struck by a golf ball hit from a golf course could claim personal injury under public nuisance. In this scenario, the class of affected individuals includes highway users, and the public’s right to use the highway has been compromised, resulting in the claimant suffering particular damage.

Question 55

What type of loss is recoverable for public nuisance claims?

Answer 55

In public nuisance, the recoverable damages include:
- Property damage and consequential economic loss, akin to private nuisance and Rylands v Fletcher.
- Damages for personal injury, which can be claimed, unlike in private nuisance and Rylands v Fletcher.
- Pure economic loss is also recoverable.
- Claimants may seek compensation for inconvenience, which must be ‘material’ (more than trivial), as noted in Jan de Nul (UK) Ltd v Royale Belge SA [2002] EWCA Civ 209.

The loss claimed must be reasonably foreseeable, as established in Wagon Mound (No. 2) [1967] 1 AC 617. For instance, in Benjamin v Storr (1873-74) LR 9 CP 400, a coffee house owner faced substantial inconvenience from auctioneers obstructing access, demonstrating the principle of material interference.

Question 56

What defences are available for public nuisance claims?

Answer 56

The same defences apply as for private nuisance except for prescription. The main defence in public nuisance is that of statutory authority.

Question 57

What are the remedies for public nuisance?

Answer 57

Injunctions and/or damages are available as for private nuisance.

If the claim is brought by the local authority or Attorney General, the only remedy available is an injunction.

Question 58

What are the key differences between public nuisance and private nuisance in terms of scope and claimant requirements?

Answer 58

Public nuisance is concerned with conduct that endangers:
- The life, safety, and health of the public, leading to a broader scope of application compared to private nuisance, which is limited to conduct interfering with land enjoyment.
- Claimants in public nuisance do not need to have a proprietary interest in the land affected by the nuisance and can seek compensation for personal injuries.
- Defendants may also be liable for isolated events in public nuisance.

Important Note: In many instances, both types of nuisance may be relevant. A public nuisance causing particular harm to a claimant can also lead to a claim in private nuisance due to interference with the individual’s use and enjoyment of their land. The defences available for both private and public nuisance are fundamentally the same.

Question 59

Provide a summary of torts related to land (nuisance).

Answer 59

To establish the elements of a claim in private nuisance, a person must have a proprietary
interest in land, must show that the interference is ‘unlawful’ and that the defendant is a person who is liable for the interference. The defences available to a defendant and available remedies for the claimant must also be considered.

The structure of private nuisance is very different to a claim in negligence, but it is important that private nuisance claims are approached in the structured way considered.

There are overlaps and differences between a claim in negligence and private nuisance. In essence, negligence requires a careless act by the defendant and will be relevant only where the claimant has suffered some tangible damage (injury or damage to property).

The rule in Rylands v Fletcher is a type of private nuisance that covers the situation where there is an escape of something dangerous in the course of a non- natural use of land. This tort protects claimants from interferences due to isolated escapes from a
neighbour’s land.

Public nuisance is a crime but it can also give rise to tortious liability in some circumstances as it may be used by individuals who have suffered particular harm due to an interference with the reasonable comfort and convenience of the public at large.