Nuisance Flashcards
Delict or property?
Historically treated as property
Can’t be negligence alone as intentional acts also
Not always repairing loss, sometimes interdict granted, restitution not there, req’d for Delict
Based on some delictual principles
How is nuisance different from other property law regimes?
Other property law regimes deal with physical intrusion (trespass & encroachment) but noise, smell etc can also be a nuisance.
Have to prove culpa in nuisance, not for other two
Have negligence and nuisance become confused?
Some early cases didn’t even mention nuisance, mentioned strict liability only.
19th c cases, not much difference!
20th c - increase in reparation - less happening, more about compensating
Intentional doesn’t fit with negligence
Scotland v England
Narrower scope in Scotland - no public nuisance nor personal injury / arising under road hazard
Scotland largely influenced by Roman law, plus quam tolerabile + sic utere tuo ut alienum laedas
Remedies - England pretty strict - can only get injunction if damages unsuitable
No Rylands v Fletcher
So some borrowing in novel cases by analogy but substantially not that much borrowed
What kind of harm?
Negligent and intentional I.e. Malicious
What kind of invasions are actionable?
Those which are plus quam tolerabile
Gravity of harm, type of harm, extent, social value of enjoyment invaded, suitability of interest / nuisance to area, public interest
Evidential burdens on each party
Pursuer - prove that harm caused is a nuisance.
Defender - excuses
What would it mean to impose strict liability in nuisance?
Would mean that didn’t matter what standard you acted to, liable regardless - only need to prove damage and causation
See R v Fletcher
Should we impose strict liability?
Yes
Deterrent - take so much care that you would avoid any negligence, also you are often dealing with dangerous things like product liability
No
Leaves no scope for actual or constructive knowledge, take as much care as you can & still at fault, ignores mental element, not really easier to succeed.
Not really easier to succeed with R v Fletcher, got to be inherently dangerous
Damages or injunction?
England damages where - only small infringement of rights - capable of being estimated in money - oppressive on defendant to interdict
Interdict where
- bad faith
- equitable
Scotland
- state in plea, can’t give opposite of what you want
Does the thin skull rule apply?
No equivalent
If you have very sensitive objects on your property, your duty to deal with this and take special care to protect from tusks
What is nuisance?
Invasion of your right to enjoy your land freely
Part of neighbour law
Prevent anticipated events and end continuing ones as well as compensating for past ones
Culpa necessary
Watt v Jamieson
Proprietor of upper floors in a flat residence brought action against owner of lower floor in which he averred that damage had been caused to his property as a result of a discharge of water vapour impregnated into the flue from a gas water heater. Not a natural and familiar use of swelling house. Plus quam tolerabile? Yes
RHM Bakeries v Strathclyde
Rule in R v Fletcher did not apply in Scotland. No liability without fault.
Bakery v public authority. Flooding after heavy rain. Had to show fault ie culpa. Not liable - only reasonable care to maintain
Webster v Lord Adv
Flat @ castle complained about noise of tattoo but esp noise from construction of stands. Interdict & declaration that SoS had created noise.
Erection of stands. Public interest meant that actual event could not be interdicted.
No excuse that she came to nuisance. Serious disturbance or substantial interference with her comfort.
Interdict - clarified @ 2. Needed to find an alternative. Suspended interdict, gave them 6 mths
Kennedy v Glenbelle
Basement tenants asked engineers to remove part of wall. Load bearing wall, damage then sustained to upper flats.
Followed RHM - culpa was basis of liability
Cambridge Water Co Ltd v Eastern Counties Leather
Foreseeability of harm is a prerequisite for the recovery of damages both in nuisance and under Rylands.
Liquid sunk into ground at tannery and came out in borehole a mile away
Marcus v Thames Water Utility
Sewers overloaded because of too much sewage, not due to their negligence, they didn’t control how much poo! Could bring action under statute but parallel common law right would make scheme redundant
Barr v Biffa
Smell of rubbish could be a nuisance. @ 1 - Landfill was reasonable use of land. 1 complaint a week per person!!
@ 2 - concept of reasonable user depends on what a normal person with find reasonable to tolerate. Imposing a numerical was excessive & unfair
Coventry v Lawrence
Lays down approach to be adopted when court had to consider whether to grant damages or injunction. Speedway and stock car racing. Planning permission. Also motocross track - certificate of lawful use.
No excuse that they came to the nuisance. Can planning permission affect? Fact that they got planning permission for the thing that created nuisance made no difference & meant that planning authority could be allowed to deprive a right holder of their right . Not good
Wheeler v Saunders
P bought property adjacent to pig farm. One of which was only a few metres away from one of P’s outbuildings which was used as holiday cottage.
Planning authority had no authority to allow nuisance, save insofar that it had a statutory power to permit a change in the character of the neighbourhood
But if lots of planning permission given out for same acts in an area could have the effect of alternative the location
Hunter v Canary Wharf
Very tall buildings interfered with TV signals. Only owners and tenants had right to sue. Floodgates - got to cal somewhere. Only those whose land had been built on, everyone else too far away.
Pemberton v Southwark
Need sufficient interest. Tolerated trespasser. Couldn’t pay rent but didn’t evict her. Flat infested with cockroaches. Interfering with her art 8 right to private and family life. Still her house. Also public authorities have no right to interfere with this right
Boomer
Landowners with property adjacent to cement plant sued, alleging that dirt, smoke snd vibration meant this was a nuisance. Normally injunction would be granted.
Weighed up cost of losing factory and cutting hundreds of jobs v awarding compensation. Perhaps not as satisfactory for the claimant!
Spur Industries v Watson
Livestock feed lot close to retirement village. Smell of poo & flies, home had to close. But still shut down due to public interest.
