Nuisance

Question 1

Delict or property?

Answer 1

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

Question 2

How is nuisance different from other property law regimes?

Answer 2

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

Question 3

Have negligence and nuisance become confused?

Answer 3

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

Question 4

Scotland v England

Answer 4

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

Question 5

What kind of harm?

Answer 5

Negligent and intentional I.e. Malicious

Question 6

What kind of invasions are actionable?

Answer 6

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

Question 7

Evidential burdens on each party

Answer 7

Pursuer - prove that harm caused is a nuisance.

Defender - excuses

Question 8

What would it mean to impose strict liability in nuisance?

Answer 8

Would mean that didn’t matter what standard you acted to, liable regardless - only need to prove damage and causation
See R v Fletcher

Question 9

Should we impose strict liability?

Answer 9

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

Question 10

Damages or injunction?

Answer 10

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

Question 11

Does the thin skull rule apply?

Answer 11

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

Question 12

What is nuisance?

Answer 12

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

Question 13

Watt v Jamieson

Answer 13

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

Question 14

RHM Bakeries v Strathclyde

Answer 14

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

Question 15

Webster v Lord Adv

Answer 15

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

Question 16

Kennedy v Glenbelle

Answer 16

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

Question 17

Cambridge Water Co Ltd v Eastern Counties Leather

Answer 17

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

Question 18

Marcus v Thames Water Utility

Answer 18

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

Question 19

Barr v Biffa

Answer 19

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

Question 20

Coventry v Lawrence

Answer 20

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

Question 21

Wheeler v Saunders

Answer 21

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

Question 22

Hunter v Canary Wharf

Answer 22

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.

Question 23

Pemberton v Southwark

Answer 23

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

Question 24

Boomer

Answer 24

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!

Question 25

Spur Industries v Watson

Answer 25

Livestock feed lot close to retirement village. Smell of poo & flies, home had to close. But still shut down due to public interest.