Nuisance and Rylands v Fletcher

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 must C show to establish private nuisance?

Answer 2

C must show:

• that there is an interference with the claimant’s use and enjoyment of land or some rights they enjoy over it; and
• that the interference is unlawful.

Question 3

To establish private nuisance, C must show that there has been an interference. What are the 3 types?

Answer 3

(1) nuisance by encroachment on a neighbour’s land;

(2) nuisance by direct physical injury to a neighbour’s land; and

(3) nuisance by interference with a neighbour’s quiet enjoyment of his land.

Question 4

To be actionable in nuisance, the interference must be?

Answer 4

Something that materially interferes with ‘ordinary comfort’, not ‘elegant or dainty modes … of living’

Loss of view =/= actionable
Disruption to TV reception =/= actionable

Question 5

To be nuisance, the interference must be ‘unlawful’.

Answer 5

What does this entail?
The interference must be unreasonable.

People are expected to tolerate a certain amount of nuisance, but when it becomes unreasonable there will be a claim.

The court considers several factors when determining what is ‘unreasonable’ nuisance.

Question 6

What is reasonable user?

Answer 6

The reasonable person test, although central to negligence, has no part to play in the analysis of whether the interference is unreasonable. A defendant may have acted unreasonably, but this is not the key issue. The relevant control mechanism is found within the principle of reasonable user, ie has the defendant’s use of their land unreasonably interfered with the claimant’s reasonable use of their land.

Question 7

What factors do the courts consider when determining if nuisance is ‘unreasonable’ and therefore unlawful?

Answer 7

Duration and frequency - some degree of continuity and frequency is require for an interference to be unlawful

Excessiveness of conduct/extent of harm - D’s conduct is viewed objectively

Character of the neighbourhood - If the claimant has suffered interference with personal comfort but not physical damage, whether the interference is unreasonable will be judged in relation to the degree and types of interference which can be expected in that particular locality

Public benefit - a nuisance activity might have a public benefit

Malice - Malice is a factor that is likely to tip the balance in the claimant’s favour, potentially making an interference unlawful that would have been reasonable (and lawful) if done without malice.

Question 8

When determining if nuisance is reasonable (unlawful), will the court take into account C’s sensitivity?

Answer 8

No - if C has an abnormal level of sensitivity, the court will not take this into account.

However, while the starting point is to assess reasonableness based on the normal user, a claimant with abnormal sensitivity can still succeed if they can demonstrate that the interference is unreasonable even for the average person using the affected land.

Question 9

Who can sue in private nuisance?

Answer 9

C must have a proprietary interest in the land.

A person who has exclusive possession of the land does have such an interest.

A person who occupies land but does not have the right of exclusive possession cannot sue in nuisance

Question 10

Who is liable in private nuisance?

Answer 10

The creator of the nuisance: The original creator of the nuisance remains liable for it even if the land is now occupied by someone else. However, if the creator can no longer be found or is not financially worth suing, the claimant must look to the current occupier of the land for a remedy.

The occupier of the land from which the nuisance originates: usually D, may be liable for nuisance of employees, independent contractors, visitors

The landlord: L is not usually liable where premises are let to a T. L liable where he has expressly/impliedly authorised the nuisance; or where the nuisance existed at the start of the letting; or were he has covenanted to repair the premises and the failure to make repairs is giving rise to the nuisance.

Question 11

To establish private nuisance, C must prove they have suffered damage. What needs to be proved in relation to this?

Answer 11

That the damage occurring is a type of damage recoverable - damage to physical buildings or land

Causation - The claimant must prove that the unlawful interference caused their damage.

Usual tests for causation apply, including the ‘but for’ test and considerations of intervening acts.

Remoteness - The court must decide whether the kind of damage that occurred was reasonably foreseeable to someone in the defendant’s position at the time of the relevant acts.

Question 12

What are the effective defences for private nuisance?

Answer 12

Effective:

1. Prescription - D has been continuing the nuisance for at least 20yrs against C.
2. Statutory authority - statute might permit a nuisance.
3. Contributory negligence.
4. D might show C consented.
5. Act of God or nature - where an interference on D’s land results from a secret unobservable process of nature, D will not be liable in nuisance
6. Necessity = a situation of necessity exists because of an imminent danger to life/property, and D’s actions were reasonable in the circumstances.

Question 13

What are the ineffective defences to private nuisance?

Answer 13

Ineffective:

1. C ‘came to the nuisance’ - if C e.g., moves house next to a nuisant neighbor, the neighbor cannot rely on the fact that C moved.
2. The fact that D’s nuisance is publicly beneficial will not afford a defence
3. Contributory actions by others - no defence that the nuisance results from several actions of other people.
4. Planning permission - the mere grant of planning permission cannot legitimise a nuisance (although it can change the character of the neighborhood)

Question 14

What are the two principal remedies for nuisance?

Answer 14

Damages - awarded for physical damage to C’s land and loss of enjoyment of land.

Injunction -

(a) Prohibitory injunction - forbids D from persisting in some wrongful act.

(b) Mandatory injunction - court orders D to take some positive action to rectify the consequences.

(c) Quia timet injunction - can be granted in anticipation of the commission of nuisance. C must show: they are almost certain to incur damage without injunction, such damage is imminent, and D will not stop their course of conduct without the order.

Question 15

Can damages be claimed for personal injury caused by private nuisance?

Answer 15

No - but could sue in negligence.

Only available for damage to land / loss of enjoyment of it.

Question 16

When will injunctions not be awarded?

Answer 16

Where damages would be an appropriate remedy. If a sum of money will adequately compensate the claimant, the court will not grant an injunction halting or restricting the defendant’s activity.

Question 17

What is abatement?

Answer 17

An alternative remedy to damages/injunction. Abatement involves the removal of the interference by the victim

Question 18

What are the differences between private nuisance and negligence?

Answer 18

PN is an interference with land.

PN requires continuity.

D can still be liable for PN if D has exercised reasonable care.

D can sue in PN for intangible damage i.e., personal discomfort caused by noise.

Injunction is a potential remedy for PN, not negligence

Question 19

Break down the elements of Rylands v Fletcher

Answer 19

The defendant brings onto their land for their own purposes something likely to do mischief - e.g., water, sewage, fumes, electricity, cattle.

Escape - there must be an escape of a ‘thing likely to do mischief’. Contrasts to PN which requires continuity. Must actually move from the defendant’s premises to a place outside the defendant’s occupation or control.

Non-natural use of land - only applies when the thing that causes damage by its escape is not ‘naturally’ on the defendant’s land. The use of land must be extraordinary or unusual according to the standards of the day. This indicates that the use of land for normal industrial purposes is not generally a ‘non-natural use’ as it is regarded as a natural use of land. However, it is a question of fact in each case. It is likely that a producer of explosives would be deemed an extraordinary or unusual use of land

Causes foreseeable damage of the relevant type - remoteness principle.

Question 20

How likely must the thing likely to do mischief be?

Answer 20

Exceptionally - Transco v Stockport.

Question 21

When is escape satisfied?

Answer 21

The thing itself must escape. If e.g., tyres set fire and the fire spreads to C’s land, this =/= escape of the thing.

Question 22

What is a non-natural use of land?

Answer 22

At the use of land must be extraordinary or unusual according to the standards of the day.

Question 23

Need D be at fault for the nuisance?

Answer 23

The rule in Rylands v Fletcher are ‘strict liability’ torts that do not depend upon the need to prove fault.

Question 24

What are the defences to the tort in Rylands v Fletcher?

Answer 24

1. Escape caused by unforeseeable act of stranger.
2. Escape caused by act of God.
3. Statutory authority.
4. Consent.
5. Contributory negligence.

Question 25

What is public nuisance?

Answer 25

Conduct that materially affects the reasonable comfort and convenience of a ‘class of Her Majesty’s subjects’ - subjects = impacts multiple people in a locality, vs one person. Does not need to impact everyone, just a cross-section

The claimant has suffered particular harm - includes property loss and loss of profit - can include personal injury.

Question 26

Give an example of public nuisance

Answer 26

A car driver on the road next to the defendant’s golf course is struck by a golf ball hit from the thirteenth tee. Evidence shows that balls from the golf course frequently go over the highway from the thirteenth tee. The car driver could bring a claim for their personal injury under the tort of public nuisance. The class of persons affected are highway users and the public’s right to use the highway has been affected. The claimant has suffered particular damage in the form of a personal injury

Question 27

What is the difference between public and private nuisance?

Answer 27

Public nuisance is concerned with conduct that endangers the life, safety and health of the public. It therefore has a potentially greater scope of application than private nuisance as it is not limited to conduct interfering with the enjoyment of land. In contrast to private nuisance, claimants in public nuisance do not need a proprietary interest in land affected by the nuisance and can be compensated for their personal injuries. Defendants can be liable for isolated events in public nuisance. However, in many cases both types of nuisance will be relevant in that a public nuisance that causes the claimant particular harm may give rise to a claim in private nuisance as interfering with the individual’s use and enjoyment of their land. The defences to private and public nuisance are essentially the same

Question 28

When is the court likely to refuse the grant of an injunction and award damages instead?

Answer 28

Where the harm suffered is small, quantifiable financially, and capable of adequate compensation by damages, and it would be oppressive to D to grant an injunction