Nuisance

Question 1

Definition of Nuisance found in Connolly v. South of Ireland Asphalt Company Ltd

Answer 1

The term nuisance contemplates an act or omission, which amounts to an unreasonable interference with, disturbance of or annoyance to another person in the exercise of his rights [over land].

If the rights so interfered with belong to the person as a member of the public, the act of omission is a public nuisance.
If these rights relate to the ownership of land, or of some other easement, profit or other right enjoyed in connection with land, then the acts or omissions amount to a private nuisance.

Question 2

Nuisance: damage or actionable per se?

Answer 2

only on proof of damage, although in some cases the damage can be presumed. Damage will be presumed where it would be inevitable.

Question 3

Forseeability and type of liability

Answer 3

No negligence is required on the defendant’s part, although the defendant must be responsible for the conduct in question, therefore nuisance is a form of strict liability. The damage must also be foreseeable (Ambrose v. Shevlin [2009] IEHC 548)

Question 4

Colour Quest Ltd v. Total Downstream UK plc [2009] EWHC 540

Answer 4

Nuisance is often described as a “state of affairs”. If the interference is a one off and is unlikely to be repeated it is unlikely to be characterised as a nuisance

However, a one-off catastrophic event did amount to a nuisance.

“the gist of the claim is not the isolated act but the continuous or permanent organisation by the defendant of his or her affairs on his or her own property is such a way as to result in the injury”.

Question 5

Hanrahan v. Merck, Sharp & Dohme (Ireland) [1988] ILRM 629

Answer 5

he tort of private nuisance protects the occupier of land from unreasonable interference with his use and enjoyment of land. The emphasis is on the reasonableness of the plaintiff’s requirements.

This case also established the test for reasonable person plantiff.

[T]he test is whether the interference is beyond what an objectively reasonable person should have to put up with in the circumstances of the case. The plaintiff is not entitled to insist that his personal nicety of taste or fastidiousness of requirements should be treated as inviolable.

Question 6

What is the reasonable plaintiff test?

Answer 6

[T]he test is whether the interference is beyond what an objectively reasonable person should have to put up with in the circumstances of the case. The plaintiff is not entitled to insist that his personal nicety of taste or fastidiousness of requirements should be treated as inviolable.

Question 7

What is an unreasonable interference?

Halpin v. Tara Mines Limited

Answer 7

An unreasonable interference with a person’s rights to the use and enjoyment of his property can take many forms such as vibrations, noise, flooding, fire, smell, smoke, dust etc. The interference can affect the person’s “nerves or senses” so as to “materially diminish the comfort and enjoyment of, or cause annoyance to, a reasonable man accustomed to living in the same locality”

The interference may also affect the plaintiff’s health, although personal injury is not an essential ingredient of the tort. If personal injury occurs as a result of the nuisance damages will be recoverable in respect of it.

The interference can also result in damage to the land or buildings on the land, or damage to crops, livestock etc.

Question 8

St Helens Smelting Company Limited

English case

Answer 8

made a distinction between a nuisance which causes injury to property and one which causes “personal discomfort” to the plaintiff.

He pointed out that persons may be required to tolerate a certain amount of personal discomfort as a result of the legitimate and reasonable actions of the defendant.

On the other hand, if the immediate result of the defendant’s actions was “injury to the value of the property” the same degree of tolerance would not be required.

Question 9

Causation: Nuisance

Answer 9

The plaintiff must prove the interference and the causal connection between the interference and the defendant’s actions.

Question 10

Lanigan v. Barry

Irish case

Answer 10

The law recognises that people have to put up with inconvenience from time to time so that others may live beneficial lives and make full use of their properties.

Question 11

Mullin v. Hynes

Answer 11

courts would not grant relief for “trivial, fanciful or exaggerated inconvenience” to the plaintiff. The plaintiff’s requirements must be reasonable in the circumstances. If the plaintiff is especially sensitive or his requirements are especially sensitive the defendant may not be found liable.

Question 12

How are damages assessed?

Answer 12

Once the plaintiff has established a nuisance affecting his reasonable requirements, however, the defendant will be liable for the full extent of the damage caused. This reflects the so-called “egg-shall skull rule” when assessing damages.

Question 13

Canadian case

McKinnon Industries v. Walker

Answer 13

fumes from the defendant’s factory damaged the plaintiff’s delicate orchids. The plaintiff could prove that ordinary flowers would have been damaged in any case; therefore the defendant was liable for the damage to the orchids.

Question 14

Unreasonableness of the Defendant’s Conduct

Answer 14

There is a fundamental difference in emphasis in the tort of nuisance compared with the tort of negligence.

In negligence the emphasis is on the reasonableness of the defendant’s conduct: provided the defendant has taken reasonable care he will not be guilty of negligence.

In nuisance the emphasis is on the reasonableness of the plaintiff’s requirements (see above).

However, in certain respects the conduct of the defendant can be taken into account, but in a very different way from a defendant’s behaviour in respect of an action in negligence.

Once the plaintiff can establish that the interference is unreasonable, the plaintiff is usually entitled to succeed irrespective of the degree of fault of the defendant.

Question 15

Christie v. Davey

Answer 15

he defendant was irritated by the music lessons taking place on the plaintiff’s premises. In response the defendant started playing loud music to annoy the plaintiff. The defendant’s actions were held to amount to a nuisance.

If the defendant acts with the intention of annoying the plaintiff, this will tilt the balance in favour of the plaintiff.

If what had taken place had occurred between two sets of persons both perfectly innocent, I should have taken an entirely different view of the case. But I am persuaded that what was done by the defendants WAS DONE ONLY FOR THE PURPOSE OF ANNOYING THE PLAINTIFF, AND WAS NOT A LEGITIMATE USE OF THE DEFENDANT’S HOUSE to use it for the purpose of vexing and annoying his neighbours.

Answer 16

In determining whether the defendant’s conduct was reasonable or not the court will consider

(a) the utility of the defendant’s conduct and
(b) the gravity of the harm.

If there is no utility in the defendant’s conduct and the interference with the plaintiff’s rights is severe this will obviously tilt the balance in favour of the plaintiff.

In reality, however, it is rarely, if ever, that simple. The court may also be influenced by the steps the defendant has taken, or failed to take, in the circumstances.

Question 17

Lanigan v. Barry: The Nature of the Locality

Answer 17

“[w]hat would be a nuisance in quiet areas of Dublin 4 would not necessarily constitute an actionable tort in the industrial heartland of West Dublin”.

In that case Charleton J said that “[i]n considering the issue as to the amenity of an area, regard should be had to its immediate history and its character prior to the commencement of the activity complained off.”

Question 18

Dewar v. City and Suburban Racecourse Company

Answer 18

the defendants organised race meetings on Sundays in Drumcondra. The plaintiff was a resident in the area and complained of noise and other disturbances, including interruption of religious services, as a result of the race meetings. The court described the locality as “a residentiary district for the middle classes”.

An injunction was granted prohibiting the defendant from holding race meetings on Sundays.

Question 19

O’Kane v. Campbell

Answer 19

here was a shop at the corner of the North Circular Road and Glengarriff Parade. The North Circular Road was described as “a wide busy street” while Glengarriff Parade was said to be “an old established residential street”.

The shop in question commenced 24 hour trading. The noise from the shop at night disturbed the plaintiff who lived opposite the shop on Glengarriff Parade. The noise was a result of people going to and from the shop, revving the engines of cars and motor bikes, banging car doors and playing car radios.

Lynch J said if the shop had been on Glengarriff Parade the disturbance would have constituted a clear nuisance, while if it had been away from Glengarriff Parade, on the main North Circular Road there would have been no nuisance. Because the shop was at the junction of both it was less clear whether the disturbance amounted to a nuisance.

However, the trial judge found in favour of the plaintiff and held that the 24 hour trading of the shop had altered “the amenity of Glengarriff Parade as a residential street”.

The court granted an injunction prohibiting the defendant from carrying on business between midnight and 6 a.m.

Question 20

Molumby v. Kearns

Answer 20

he plaintiff lived on Foster Avenue, Mount Merrion, Dublin 4. The plaintiff complained of noise and fumes from traffic on an adjoining industrial estate. O’Sullivan J treated the locality as a residential area, but not an exclusively residential area, rather one “adjoining a busy road” and with an industrial estate “in its midst”.

The trial judge did not think it would be reasonable to demand the industrial estate to close down, but neither was it reasonable that “the noise, fumes and general activity and traffic movements on the estate should be such as to cause an undue impact on the amenities of the nearby residences.”

It was ordered that the activities at the industrial estate would be restricted to day time hours, Monday to Friday and on Saturday mornings only.

Question 21

Lanigan v. Barry

Answer 21

the plaintiffs complained of noise from a motor racing track in South Tipperary. The plaintiffs bred race horses which were particularly affected by the noise and this was found to have affected the plaintiff’s business.

The noise was such that one of the children of the plaintiff studying for his leaving certificate had to move to Dublin as a quieter location. There was expert evidence on behalf of both the plaintiff and the defendant. The court accepted that on the evidence the noise was “likely to be intolerable to anyone with normal sensitivities”.

The court held, however, that “there was no standard … as what is a nuisance by reference to any standard as to noise laid down by an expert body.” Charleton J said that he was “much more influenced by the human reactions of the plaintiffs … than by any scientific evidence” He explained that “[p]eople experience a nuisance, whatever it is, based on human factors. In case of noise, factors such as tone, unexpectedness and irritant factor, which cannot be measured by scientific instruments, are very important.”

Charleton J also commented on how the character of an area can change over time,

In the circumstances, the appeal was allowed and the matter was remitted to the High Court for a more precise and appropriate injunction to be granted.

Question 22

Molumby v. Kearns: Who can sue?

Answer 22

is established by the plaintiff who sues in nuisance if he or she is the occupier of the land”

Question 23

When is a landlord vicariouslt liable for nuisance?

Answer 23

A landlord of a property let to a tenant under a tenancy is not generally liable to be sued, unless the landlord:

authorised the creation or continuance of the nuisance;

or the landlord has let the property to the tenant with a nuisance in existence;

or where a landlord is under an obligation to repair the property.

Question 24

Harrington Confectioners Limited v. Cork City Council :

An occupier of property may be liable for a nuisance not caused by him in circumstances where he was aware or ought to have been aware of the nuisance and failed to take steps to avoid or eradicate it.

Answer 24

Gilligan J granted an interlocutory injunction in circumstances where members of the travelling community moved caravans onto land belonging to Cork City Council. The land was adjacent to the plaintiff’s premises. The Council erected a number of cement bollards to prevent caravans driving on to the land. The plaintiff complained of a nuisance from the presence of the caravans and the members of the travelling community on the land together with their animals. The plaintiff also complained of rubbish being dumped on the area around the defendant’s land. The plaintiff claimed that FAS trainees were afraid to go to work at the plaintiff’s factory as a result of activities on the defendant’s land.

The responsibility which attaches to the occupier because he has possession and control of the property cannot logically be limited to the mere creation of the nuisance. It should extend to his conduct if with knowledge he leaves the nuisance on his land.

The court found that the defendant had not taken adequate measures to ensure that new caravans could not enter the land. Secondly, the court found the defendant had taken no adequate steps to clean up the rubbish and waste that had been dumped in the area near to the land.

Question 25

Defences: Nuisance

Answer 25

The consent of the plaintiff may amount to a defence to a nuisance action

If the plaintiff’s own actions contributed to his injury the defence of contributory negligence may be raised.

If a local authority or public body exercises a statutory power and this causes the nuisance they are immune unless negligence is proven.

Prescription, i.e., the acquisition of a right by continuous use without objection over a period of time, can be pleaded as a defence in cases of nuisance.

Question 26

Pwllbach Colliery Company Limited v. Woodman

Answer 26

Such consent may be proved like any other question of fact. It may appear from the conduct of the parties and the surrounding circumstances, as in Hall v. Lund , or as in Lyttelton Times Co. v. Warners, where both parties agreed that the very thing which was done should be done, though neither of them expected that it would cause a nuisance.

Question 27

Hall v. Lund

Answer 27

it was held that the granting of a right to carry on a bleaching business involved the right to pollute a stream because there was an implied grant to the lessee of the right to use this watercourse, as the former tenant had used it, for the purpose of carrying on the bleaching business.

Question 28

Planning permission absolving of nuisance

Answer 28

A grant of planning permission will not necessarily absolve a defendant of liability. The terms of the permission should be strictly followed. In Lanigan Charleton J said a grant of planning permission does not authorise a nuisance, although it might change the nature of the locality. He noted that, following a grant of planning permission, “people retain their rights but according to the standard, judged against the nature of the locality, that the law sets”.

Question 29

Prescription, i.e., the acquisition of a right by continuous use without objection over a period of time, can be pleaded as a defence in cases of nuisance.

Answer 29

Lanigan racetrack case with the horses.

Question 30

Miller v. Jackson

Answer 30

It is no defence for an occupier of land to say that the nuisance pre-existed on the land before he came into occupation: An occupier will be liable in those circumstances if he fails to take adequate steps to eradicate the nuisance in question:

Question 31

Lambton v. Mellish

Answer 31

Concurrent wrong doers in nusinsance now reflected in s 12(3) of the Civil Liability Act 1961. The rules in Part 3 of the Civil Liability Act 1961 relating to liability of concurrent wrongdoers will apply in such a situation.

Merry go round partnered with an organ.