Nuisance (privat & public)

Question 1

What kind of tort is private nusiance?

Answer 1

Land-based tort

Question 2

What ar ethe four elements of a claim in private nuisance that the claimant must prove.

Answer 2

1. Indirect interference
2. Recognised damage (which is reasonably foreseeable)
3. continuous act
4. Unlawful interference

Question 2

What is a private nuisance?

Answer 2

Any continuous activity or state of affairs causing a substantial and unreasonable interference with the claimant’s land or their use or enjoyment of that land

Question 3

What are the requirement for who can:

1. sue in a private nuisance
2. be sue in private nuisance

Answer 3

1. sue in a private nuisance (C)

C must have a legal interest in the land affected; proprietary interest

2. be sue in private nuisance (D)

a. Creator of the nuisance

b. occupier of the land from where the nuisance has come whether created mys themselves or others

contractors, trespassers, naturally occurring nuisance (where ought to have known of the danger and failed to take reasonable steps to abate the nuisance)

c. Owner of the land where the nuisance has come where they (i) created or, (ii) authorised the nuisance

Question 4

What are the main types of recognised damages which may be recovered under private nuisance

Answer 4

• physical damage to property: Physical damage to property must be more than de minimus Mitchell v Darley Main Colliery[1886]
• ‘sensible personal discomfort’: Where the senses of the claimant are affected in such a way that the claimant is unable to enjoy their land. SPD can be defined as amenity damage, ie something which damages the amenity (enjoyment) value of the property, as opposed to its physical value. A claim can only be brought if the SPD is more than fanciful and would materially interfere with ordinary human comfort. Walter v Selfe (1851)

St Helen’s  Smoke and fumes from the defendant’s copper smelting plant caused damage to the claimant’s property (vegetation) and prevented the use and enjoyment of their property.

• Consequential economic loss  For example loss of profit caused by the claimant’s inability to use their land to make those profits.

Question 5

Can C claim for PI or pure economic loss in private nuisance?

Answer 5

no -> You cannot claim for personal injury or pure economic loss in private nuisance.

Question 6

What is meant by ‘unlawful interference’?

Answer 6

whether continuous act amounts to an unreasonable use of land by D (even if reasonable care and skill was exercised to avoid it )

Usually easy to show where there has been property damage

Question 7

What are some key factors that the court will look to when determining whether the use of land was unreasonable?

Answer 7

• Time and duration  If the interference is frequent or for long periods of time, this may be deemed unreasonable. Kennaway v Thompson[1981] stated that in establishing this it’s important to see when the nuisance takes place, how long it continues for, how frequently it’s repeated.
• Locality & character of the neighborhood  Whether use of land is reasonable will depend, in part, on the character of the area. Sturges v Bridgman (1879). What is reasonable in a residential area is different to what is reasonable in an industrial/commercial area. Adams v Ursell [1913].

Planning permission may alter the character of the area, so that what was once a nuisance in that area is no longer a nuisance as the area has changed or vice versa. Gillingham Borough Council v Medway (Chatham) Dock Co Ltd[1993]

• abnormal sensitivity  A claimant who is unusually sensitive / has unusually sensitive property cannot claim that activities that would not interfere with the ordinary occupier are a nuisance, because their loss is not reasonably foreseeable by the defendant (Robinson v Kilvert (1889).

However, if the reasonable occupier would be affected, the claimant can claim for the full extent of their loss and irritation, even though these are increased by their sensitivity (‘thin skull’ rule). McKinnon Industries v Walker [1951]

• malice  if the defendant can point to no real justification for their actions as their aim is solely to annoy the claimant, this will normally constitute a nuisance. Christie v Davey [1893].
• lack of care of the defendant If the defendant doesn’t exercise reasonable care having regard of potential neighbor disturbances in conducting his activity, this will be regarded as a nuisance. However, if these works are reasonably carried on and all reasonable steps are taken to ensure that no undue inconvenience is caused to the neighbours the neighbours must put up with it. Andreae v Selfridge and Co Ltd [1938]
• excessive behaviour  If the defendant has behaved in an excessive manner, this may indicate that they are being unreasonable and creating a nuisance. Adams v Ursell [1913]
• public benefit  Just because the defendant’s activities serve a useful purpose or benefit the community, this does not mean they have not committed a nuisance. In Adams v Ursell [1913]

Question 8

What are the 6 defences to private nuisance?

Answer 8

1. 20 years prescription
2. statutory authority
3. contributory negligence
4. consent (needs ot have been specifically agreed)
5. Act of a third party
6. Act of God

Question 9

What is the ‘20 years prescription’ defence?

Answer 9

defence to private nuisance

where D’s activity has been an actionable nuisance for 20 years or more but no such action has been taken -> D will have earned the right to continue to commit the nuisance.

Coventry: it’s not enough to show that the activity/noise had been carried on for 20 years. It must be established that the activity had created a nuisance for 20 years.

Question 10

What are the 3 main remedies for private nusiance?

Answer 10

1. Injunction (full/ partial)

Primary remedy

2. Damages

Rarely awarded instead of an injunction; Dennis v MoD [2003] damages awarded where public benefit outweighed C’s rights.

3. Abatement

Self-help remedy where C acts to stop the nuisance; no need for a court order but C must notify D of intention to abate

Question 11

What is a public nuisance?

Answer 11

Acts or omissions of the defendant that materially affect the reasonable comfort and convenience of life of a class of Her Majesty’s subjects. (Attorney General v PYA Quarries.)

Public nuisance is a crime. It may also be a tort where the harm suffered is by a section of the community or the community as a whole. Thus, we rely on various criminal cases in our analysis of a claim.

Question 12

Who can:

1. sue for public nuisance (C)
2. be sued for public nuisance (D)

Answer 12

1. sue for public nuisance (C)

individual -> if they have suffered special damaged above/ different to the rest of the class.

local authority -> on its own behalf or on the behalf of inhabitants

Attorney General -> where a class of people are affected by the public nuisance and no individual action is possible or forthcoming, the Attorney General may bring the claim on the class’s behalf in their name.

2. be sued for public nuisance (D)

Person creating/ resposnible for the nuisance

Question 13

What are the 4 main categories of loss which can be claimed for in public nusinace?

Answer 13

1. PI
2. Property damage
3. Consequential economic loss
4. Pure economic loss and inconvenience (SPD)

Question 14

What are the 4 elements of a public nuisance claim?

Answer 14

1) Act or omission;

2) one-off event;
(note: contrast contrast to the ‘continuous state of affairs’ required for private nuisance).

3) class of Her Majesty’s subjects;
By class we mean ‘a significant section of the community’ or “a representative cross-section has been affected

4) and materially affects comfort and convenience.

Question 15

What are the 4 main defences to a claim for public nuisance?

Answer 15

1. Statutory Authority,

2.Consent,

3. Contributory Negligence,
4. Claimant moving to nuisance.

Question 16

What is meant by ‘coming/ moving to the nuisance’?

Answer 16

legal doctrine which prevents a party from claiming nuisance if said nuisance was present, and the party knew of that nuisance before they acquired the property subject to the nuisance

pplies when the harmful activity was operating before the plaintiffs acquired the property impacted by the nuisance.

Question 17

What are the main remedies for public nuisance claims?

Answer 17

damages and/or injunction can be sought.

The Attorney General or Local Authority can only seek an injunction, not damages.

Question 18

What is the rule in Rylands v Fletcher?

Answer 18

protects against interference to the claimant’s land due to an isolated escape from the defendant’s land.

facts: defendants employed independent contractors to construct a reservoir on their land. The contractors found disused mines when digging but failed to seal them properly. They filled the reservoir with water. As a result, water flooded through the mineshafts into the plaintiff’s mines on the adjoining property.

Question 19

Who can sue under the rule in Rylands v Fletcher?

Answer 19

C must have a proprietary interest in the affected land

(note: this is because the rule in Rylands v Fletcher rule is a sub-species of private nuisance)

Question 20

What are the two main losses which can be recovered under Rylands v Fletcher

Answer 20

1. Consequential economic loss
2. Property damage

Question 20

Who can be sued under the rule in Rylands v Fletcher?

Answer 20

person who brings, collects and keeps the ‘thing’ onto the land (the creator of the nuisance) and/or any person who has control over the land (owner/occupier).

Question 21

What are the 5 elements of Rylands v Fletcher

Answer 21

1. D must have voluntarily brought, and accumulated something on their land.

(no liability for something that grows naturally onto the land. Giles v Walker (1890)

2. Thing brought onto land must be likely to cause damage in case it escapes (e.g. acid, water, explosives)

note: high threshold - thing that escapes needs to be recognised has having an ‘exceptionally high risk’ of causing danger if it were to escape

3. An escape of the the thing collected form the land D has control over -> to land D does not have control over

basically escape from D’s land to C’s

4. escape must cause reasonably foreseeable harm

note: escape itself does not need to be reasonably foreseeable; just the harm in case it did escape

strict liability -> even if D took reasonable care to prevent escape and damage, D is still liable

5. Accumulated thing must be for a non-natural use

note: basically a non-ordinary use

Question 22

What are the 2 main remedies for a Rylands v Fletcher claim?

Answer 22

1. Damages -> most common

given that the types of loss recoverable in Rylands v Fletcher are property damage and consequential economic loss and Rylands v Fletcher covers isolated events.

2. Injunctions

Question 22

What are the 6 defences to the rule in Rylands v Fletcher?

Answer 22

1. Common benefit -> implies consent if for the common benefit of C and D
2. Act or default of C -> if escape has been caused wholly by C there is no liability
3. Statutory authority -> e.g. Green v Chelsea Waterworks Co (1894) statutory powers authorised the laying down of a water pipe (which burst). The defendant was under a statutory obligation to maintain high pressure in the water main, meaning any escape would inevitably cause damage.
4. Act of a third party -> where escape arose through the unforeseeable act of a stranger over whom they had no control
5. Act of God
6. Contributory negligence