Private Nuisance, Escape Of Dangerous Thing And Defences

Question 1

Private Nuisance:
- unlawful interference
- factors of reasonableness
- defences
- remedies

Answer 1

Private nuisance is a tort claim where some ones use or enjoyment of their property is affected by unreasonable behaviour of a neighbour. It is concerned with protecting the rights of an occupier against:
“Unreasonable interference with the enjoyment or use of his land”.
A claimant must have: “interest of the land”.
(Hunter v Canary Wharf)

Unlawful Interference:
C must prove that the D’s activity amounts to unlawful use of land. Unlawful means:
“an unreasonable use leads to an unreasonable interference with the C’s use or enjoyment of their land” (LB of Southwark v Mills).

Factors of Reasonableness:
When determining whether or not the use of the land and the interference were reasonable or not, the courts will consider:
• Locality: The court will consider questions such as whether the area is purely residential and partly commercial or industrial. If it is situated in the town or country, or whether the character has changed.
• Duration: To be actionable, the interference is likely to be continuous and carried on at unreasonable hours of the day. The longer a nuisance lasts, the greater the interference and more likely to be an unlawful interference. However, a temporary nuisance may still amount to nuisance:
(Crown River Cruises Ltd v Kimbolton Fireworks).
• Sensitivity: If it can be shown that the claimant is particularly sensitive, then the action may not be a nuisance (Robinson v Kilvert).
• Forseeability: If the interreference was not foreseeable then there will be no liability (Network Rail Infrastructure v Morris).
• Malice: A deliberately harmful act will normally be unreasonable behaviour and considered a nuisance (Hollywood Silver Fox Farm v Emmet).
• Social benefit: If it is considered that the D is providing a benefit to the community, the court may consider the actions reasonable
(Miller v Jackson).

Defences:
Unlike some other torts, the defendant can argue a number of defences.
- Moving the nuisance
- Prescription
- Statutory authority

Remedies:
• Compensatory damages
• Injunction
•Abatement: This could involve entering the defendant’s premises in order to prevent a further nuisance. For example, a C could enter a D’s land in order to chop down overhanging branches, although they would need to be returned to the defendant.

Question 2

Rylands and Fletcher
- defences

Answer 2

Four elements must be proven in order to be a successful claim:
1. The bringing onto the land.
- There must be a bringing onto the land of a substance which was not normally present on the land. If it is naturally present on the land, there can be no liability: Giles v Walker (1890).
- There can be no liability for a thing that naturally accumulates on the land: Ellison v MOD (1997).

2. Of a thing likely to cause mischief if it escapes.
   - The thing which D brings onto the land must be likely to do damage if it escapes. The damage must be foreseeable if the thing does escape.
3. Which amounts to the non-natural use of the land.
   - Non-natural means the use must be ‘extraordinary and unusual. Things stored on the land associated with the domestic use will not normally be classified as non-natural.
   (Rickards v Lothian)
4. The thing stored must escape and cause foreseeable damage to adjoining property
   - An injury inflicted by an accumulation of a substance on the land itself will not invoke liability: Read v Lyons.
   - Damage to the adjoining property must be foreseeable: Cambridge Water Co. v Eastern Counties Leather.
   - Important to note if damage is caused by fire…
   Standard (t/a Wyvern Tyres) v Gore (2012).

Defences:
• Consent (volenti non fit injuria): There will be no liability where the claimant has consented to the thing accumulated by the D (See remedies and defences handout)
• Act of a stranger: If a stranger over whom the D has no control has been the cause of the escape causing the damage, D may not be liable (Perry v Kendricks Transport Ltd (1956)
• Act of God: The defence may succeed where there are extreme weather conditions that no ‘human foresight can provide against’ It is only likely to succeed it is unforeseeable (Nichols v Marsland (1876)
• Statutory authority: If the terms of an Act of Parliament authorise the defendant’s action, this may amount to a defence.
• Contributory negligence: Where a claimant is partly responsible for the escape of the thing, the Contributory Negligence Act applies and damages may be reduced (See remedies and defences handout).