Nuisance

Question 1

What is the definition of private nuisance?

Answer 1

Unlawful interference with a person’s
use or enjoyment of land, or some right over, or in connection with it

Question 2

What are the three types of interference within private nuisance, from Hunter v Canary Wharf?

Answer 2

1. Nuisance by encroachment
2. Nuisance by direct physical damage to a neighbour’s land
3. Nuisance by interference with a neighbour’s quiet enjoyment of their land (interference with personal comfort or loss of amenity)

Question 3

With regard to “unlawful interference”, what constitutes “unlawful”?

Answer 3

Substantial and unreasonable

Question 4

What are the factors a court will consider in deciding if an interference is substantial and unreasonable, and therefore “unlawful”?

Answer 4

Duration and frequency
Excessiveness of conduct/ extent of the harm
Character of the neighbourhood (only relevant to an interference which causes personal discomfort and inconvenience)
Malice of “unreasonable” activity

Question 5

What relevance does abnormal sensitivity have on private nuisance claims?

Answer 5

When deciding whether an interference is unlawful the courts will look at its impact on
the normal user of neighbouring land, ignoring any abnormal sensitivity of the claimant

Question 6

How is the “egg-shell skull rule” applicable in private nuisance?

Answer 6

If the claimant can show that the interference is unlawful when judged against the normal user of their land, they can then recover for all their loss even if greater (due to their sensitivity) than the normal user

Question 7

Who can sue in private nuisance?

Answer 7

Only a person with the right to exclusive possession of land - i.e. owner/ occupier, or tenant

Question 8

What three parties can be liable in private nuisance?

Answer 8

1. Creator of the nuisance
2. Occupier of the land from which the nuisance originates
3. The landlord

Question 9

If the land from which the nuisance originates is occupied by someone else, who is liable for the nuisance?

Answer 9

The creator of the nuisance

Question 10

In what event would the occupier of the land from which the nuisance originates be liable instead of the creator of the nuisance?

Answer 10

When the creator can no longer be found, or is not financially worth suing

Question 11

In what three events would a occupier be liable for a private nuisance which they did not create?

Answer 11

1. Created by employee acting in the course of their employment
2. Created by independent contractor, provided the nature of the work carries a special danger of the nuisance being created
3. Created by a visitor, predecessor in title or trespasser, or arises through some natural occurrence provided the occupier has adopted the nuisance or continued it

Question 12

In what events could the landlord be liable for nuisance caused by tenants?

Answer 12

1. Express or implied authorisation for the nuisance
2. Landlord aware of the existence of the nuisance at the start of the letting / landlord knew or ought reasonably to have known of it
3. Landlord has covenanted to repair the premises / has the right to enter to do so, and fails to make the repairs which give rise to the nuisance

Question 13

What types of damage are recoverable under private nuisance?

Answer 13

Physical damage to land or buildings
Recoverable damage and an consequential losses flowing from this

NOT personal injury or damage to personal property

Question 14

What test for remoteness of damage applies for private nuisance?

Answer 14

Wagon Mound test

Question 15

What is the defence of prescription in relation to private nuisance?

Answer 15

Defendant can show they have been continuing the nuisance for a period of at least 20 years against the claimant - therefore have acquired right to commit the nuisance

Interference must have been actionably by particular claimant for at least 20 years

Question 16

Asides from prescription, what other defences are effective for private nuisance?

Answer 16

Contributory negligence
Consent
Act of God or nature
Necessity

Question 17

What are the two elements required for the defence of necessity for private nuisance?

Answer 17

1. Situation of necessity exists because of an imminent danger to life and limb, and
2. Defendant’s actions were reasonably in all the circumstances

Question 18

What are some ineffective defences against private nuisance?

Answer 18

Claimant “came to the nuisance”
Public benefit
Contributory actions of others - i.e. defendant’s action alone would not constitute an actionable nuisance
Planning permission

Question 19

What are the principle remedies for private nuisance?

Answer 19

Damages (common law remedy)
Injunction (equitable remedy)

Question 20

What are the three types of injunction?

Answer 20

Prohibitory injunction
Mandatory injunction
A “quia timet” injunction

Question 21

What is a “quia timet” injunction?

Answer 21

A prohibitory or mandatory injunction granted in the anticipation of the commission of the tort by the defendant, in order to prevent the claimant suffering any damage

Question 22

What does a claimant need to show in order to obtain an “quia intent” injunction?

Answer 22

They are almost certain to incur damage without the injunction, and

Such damage is imminent, and

Defendant will not stop their course of conduct without the order of the court

Question 23

What are the requirements for the claimant to pursue the remedy of abatement (self-help) against private nuisance?

Answer 23

Victim must give prior notice to the wrongdoer (except in an emergency or where the nuisance can be removed without entering wrongdoer’s land)

Question 24

What situation does the Ryland v Fletcher tort cover?

Answer 24

Where there is an escape of something dangerous in the course of a non-natural use of land

Question 25

What are the 4 elements of the Ryland v Fletcher tort?

Answer 25

1. The defendant brings onto their land for their own purposes something likely to do mischief
2. It escapes
3. Which represents a non-natural use of land
4. It causes foreseeable damage of the relevant type

Question 26

What type of liability is Ryland v Fletcher?

Answer 26

Strict liability - i.e. no fault needed

Question 27

What kinds of things would satisfy the first requirement of Ryland v Fletcher?

Answer 27

Water, cattle, sewage, fumes, electricity

Question 28

What constitutes an “escape” under Ryland v Fletcher?

Answer 28

An isolated event - the substance or item causing damage must actually move from defendant’s premises to a place outside their occupation or control

Question 29

What is the test for “non-natural use of land” from Transco v Stockport Metropolitan Borough Council?

Answer 29

Use of the land must be extraordinary or unusual according to the standards of the day

Question 30

What defences are available for the tort under Ryland v Fletcher?

Answer 30

Escape caused by unforeseeable act of a stranger

Escape caused by an “act of God” which could not have been reasonably foreseen

Statutory authority

Consent (voluntary assumption of risk)

Contributory negligence

Question 31

What are the two elements of public nuisance?

Answer 31

1. Conduct that materially affects the reasonable comfort and convenience of a “class of Her Majesty’s subjects” (i.e. a number of people), and
2. The claimant has suffered particular harm (this includes personal injury)

Question 32

Does a claimant need to have a proprietary interest in the affected land in order to make a public nuisance claim?

Answer 32

No

Question 33

What type of liability is public nuisance?

Answer 33

Strict liability - i.e. no fault needed