Tort Law - Torts re. Land

Question 1

What is the definition of private of nuisance?

Can you name the elements of private nuisance?

Answer 1

Any continuous activity or state of affairs [typically D’s unreasonable use of the land] causing a substantial and unreasonable interference with someone’s use and enjoyment of their land.

1. D’s Unreasonable Use of the land
2. Continuous Act/Duration (in 9/10 cases)
3. Unlawful Interference with C’s use and enjoyment of their land

Question 2

If someone comes to their land, aware of a pre-existing issue, can they claim private nuisance?

Answer 2

Coming to the nuisance is NOT a bar (or defence for the Defendant), e.g. Miller v Jackson.

C could sue, despite being aware of the long-established cricket club next to their land.

Question 3

Who can sue in private nuisance?

Answer 3

Someone with a proprietary interest in the land, i.e. a freeholder or leaseholder (not a mere licensee, e.g. family members living with the homeowner)

1. Freehold owners
2. Leasehold tenants
3. Grantees of an easement
4. Licensee with exclusive possession

Question 4

Who can be sued in private nuisance?

Can you, as occupier, be held liable for nuisance created by another person on your land, and in which circumstances?

Answer 4

1. CREATOR OF THE NUISANCE (even if they have NO proprietary interest in the land, are not the occupier or are not in a position to stop the nuisance)
2. OCCUPIER OF THE LAND from which the nuisance emanates, and even where:

(a) INDEPENDENT CONTRACTORS’ foreseeable nuisance was created on their land (e.g. dust/noise)

(b) CONTINUING /ADOPTING A NUISANCE, e.g. a TRESPASSERS’
(A trespasser put a water pipe under D’s land. D used the poorly maintained pipe and it flooded C’s land. (D knew or ought reasonably to know of its existence).

(c) NATURALLY OCCURRING NUISANCES (Goldman v Hargrave): lightning stuck D’s tree and set fire to D’s land. D put out the fire but did not douse the embers in water. They reignited due to wind and went on to burn C’s land. D was liable as he had the physical and financial ability to take reasonable steps to abate the nuisance.

Question 5

Landlords are not usually liable for their tenants’ nuisance under the exception in (Coventry v Lawrence) applies - what is this?

Answer 5

Landlords are not liable for their tenants’ nuisance unless they:

• authorised it
• actively participated in it
• leased the land in circumstances that there was a high probability (virtual certainty/inevitable) this would result in that nuisance being created

In this case, C moved into a bungalow 1km from D’s noisy motor-sports track. The nuisance (noise) was not an INEVITABLE or VIRTUALLY CERTAIN of renting those premises. There were ways in which it could have been used without causing the nuisance. It is NOT ENOUGH that the landlord WAS MERELY AWARE of how the tenants use the premises.

Question 6

Can you sue someone causing a nuisance if they have no proprietary interest in the land?

Answer 6

Yes, D can be sued for just creating the nuisance.

EG: Portsmouth City Council did not own the roads but were responsible for maintaining the trees (Jones v PCC). The trees’ roots encroached onto C’s land and the moisture extraction had caused subsidence in C’s property.

Question 7

When deciding whether D’s use of the land was reasonable, what factors will the court consider?

Can you think of some case examples?

Answer 7

1. The nature of the locality/neighbourhood
2. Duration
3. Sensitivity
4. Malice

Malice (D fired his shotgun as he objected to the loud fox noises; despite their sensitivity to noise, he was liable as he acted in malice - (E v Silver Fox Farm)).

In industrial areas, a higher level of disturbance is considered “reasonable” compared to rural areas.

Question 8

In (Bury v Pope), D built a house against the claimant’s window. The claim in nuisance _____

Answer 8

Failed because C had no right to light.

LAND LAW: “right to light” easements can only work if light is received through a defined apecture, e.g. windows or a conservatory. The right to light is only to minimum levels of illumination; not direct sunlight).

Question 9

What are some common sources of private nuisance? What does it typically look like?

Answer 9

Sounds, smells, fumes and vibrations (indirect interference).

Contrast with direct interference, which is claimed under the tort of Trespass to Land (e.g. D has run out of space on his land and dumps his horse’s manure on your field).

Question 10

What type of damage [literal damage, not in the tortious remedy sense] is typically caused by nuisance?

Name all the examples you can think of.

Answer 10

PHYSICAL DAMAGE TO LAND: must be more than trivial (de minimis)
- overhanging branches injuring a home
- embers catching fire and burning C’s land
- uncut tree roots entering C’s land and causing subsidence
- Smoke & fumes from D’s furnace damaged C’s vegetation on his land (which prevented his use & enjoyment of their property).

SENSIBLE PERSONAL DISCOMFORT (discomfort to one’s senses): must be more than fanciful / materially interfere with ordinary human comfort
- focuses on amenity (enjoyment) and not damage to property value
- running brothel in a nice area can be nuisance
-

Question 11

Can you claim personal injury in the tort of private nuisance?

Answer 11

No, because this tort concerns the land (Hunter v Canary Wharf).

Question 12

Does the type of damage (physical land damage or to one’s senses / personal discomfort) have to be reasonably foreseeable in private nuisance?

Answer 12

Yes, the damage must be reasonably foreseeable

Question 13

Can you claim consequential loss of profits for not being able to use one’s land due to the nuisance?

Answer 13

Yes, you can claim consequential loss of profits

Question 14

Can you claim nuisance if a large building or skyscraper interferes with your signal tower transmission?

Answer 14

No, you cannot claim this (Hunter v Canary Wharf).

Question 15

Can a single event constitute private nuisance?

Answer 15

Yes, it is possible (but most cases are enduring state of affairs, e.g. smells or noise)

EG: D conducted a firework display. Some burning debris from the display landed on a nearby barge which caught fire. The defendant was liable despite the nuisance only lasting twenty minutes.

EG: D put metal foil strips outside his factory, that were blown off and into C’s power station, causing electricity issues. This isolated incident DID create a nuisance because they had done the same 3 years ago and got a warning from the electricity board.

Question 16

What is the legal position on “sensitivity” in private nuisance?

Answer 16

D will not be liable unless the unreasonable use of the land would have amounted to nuisance TO A REASONABLE PERSON, USING THEIR LAND IN A NORMAL MANNER.

D’s basement was very dry and warm because he ran a paper box making business. He let out the ground floor to C, who used that floor to store brown paper. When the paper was damaged by the heat, D was NOT LIABLE as the damage was due to the brown paper’s special sensitivity; normal paper would not have been damaged (Robert v Kilbert).

C ran a recording studio in Clapham. A new signal system was installed in the local tube station, which interfered with C’s music production and C lost numerous clients. D was not liable because (1) the amplified guitars fell into extraordinarily sensitive equipment, and (2) the interference was NOT FORESEEABLE.

HOWEVER, C can claim for damage to unusually sensitive property if it impaired their ORDINARY ENJOYMENT OF THE LAND (e.g. gardening - orchids, which are known to be sensitive).

Question 17

What is the effect of planning permission on private nuisance?

Answer 17

Planning permission can have the effect of changing the locality (neighborhood) to make nuisance more difficult to establish.
EG: D got planning permission to change a disused dockyard into a commercial port, operating 24-hrs a day. HELD that the assessment of nuisance is considered AFTER THE DEVELOPMENT (not how the land used to be), so Cs’ claim failed.

However, planning permission is not an automatic win for the D, for example:
“The Court should be slow to acquiesce [to] the extinction of private [law] rights without compensation as a result of administrative decisions…”

• C rented out farmspace to D and also owned a holiday cottage next-door. D obtained planning permission to build 2 enclosures for keeping pigs, one of which was 15metres away from the holiday cottage. C complained of noise and smell, and nuisance was found in spite of PP (Wheeler v JJ Saunders).

The precise terms of the planning permission might have a bearing on whether D’s use of the land was reasonable or not (Coventry v Lawrence), e.g. the factory can only operate from 9am - 9pm; any lorries leaving outside these times could indicate unreasonable land use.

Question 18

Are there defences to nuisance?

Is coming to the nuisance a defence?

Answer 18

1. 20 YEARS PRESCRIPTION
   —-> the length of time is for how long Claimant COULD HAVE COMPLAINED; not the length of the nuisance.
   - confectionery had been built 20 years ago but had only become a complain-able nuisance recently, so C could not claim (Sturges).
2. CONSENT
   —-> C, knowing the SPECIFIC danger to property, has shown (by word or deed) willingness to accept the risks.
   —-> C consented to the colliery activity but not to the specific disruption caused by the coal dust, so no consent defence.
3. CONTRIBUTORY NEGLIGENCE
4. ACT OF A THIRD PARTY
   —-> No liability for acts of third parties/trespassers unless the Defendant continues/adopts the nuisance.
5. ACT OF GOD
   —-> An unusual amount of rainfall in D’s pool led to flood of C’s land, so D had a COMPLETE DEFENCE.

Act of God cases can result in D’s liability where the D adopts/continue the nuisance or fail to rectify hazardous situations on their land (fires not properly put out in (Goldman v Hargrave)). D was aware of the danger and failed to act with reasonable prudence to remove the hazard (Goldman v Hargrave; followed in Leakey v National Trust).

6. NECESSITY
   - imminent danger
   - D’s act necessary to prevent further harm / protect limb, life or property
   - no alternative course of action
   - harm caused by D’s acts was proportionate.
7. STATUTORY AUTHORITY
   —-> D constructed an oil refinery on his land, which interfered with C’s reasonable use & enjoyment due to smell, noise, and vibration. C had no claim because the construction of the oil refinery was authorised by an Act of Parliament.

Coming to the nuisance is no defence for D to rely on (Miller v Jackson).

Planning permission is no defence (Wheeler v JJ Saunders).

Question 19

Is the “locality” (neighborhood) relevant to physical damage cases and personal sense discomfort cases?

Answer 19

No, only to personal sense discomfort cases.

Physical damage is damage regardless of the locality, e.g. fire to apartment block or roots causing subsidence - this is damage regardless of the neighborhood, e.g. busy urban area vs residential farmland.

Question 20

What are the remedies for private nuisance?

Answer 20

1. INJUNCTION (to stop a certain or compelling D to act)
   - partial injunctions are possible, e.g. X action will continue only at reduced frequency, or between Y-Z times.
   - partial injunctions often used where public benefit is involved, e.g. a planned timetable for a popular yet loud water-skiing business.
2. DAMAGES
   - cost of repair (physical harm)
   - consequential economic loss
   - damages in lieu of injunction (if personal, sensory harm), e.g. the court will not impose an injunction on an airport because one homeowner objects to it (idea of quid pro quo; live and let live).

Damages in lieu are often calculated by reference to the loss in property value, e.g. due to living close to RAF Aircraft training base.
[But remember that coming to the nuisance is not a defence. In Miller v Jackson, the community needs prevailed in that the cricket club was not subject to an injunction; instead, it had to pay C damages for the disruption caused by the cricket].

3. ABATEMENT
   - self-help remedy, e.g. C taking it upon himself to cut the overhanging branches over his property.
   - C must not do anything more than necessary to remove the nuisance.
   - If coming onto D’s land, any of his property must be left on the land.

Question 21

Rosie has just opened a yoga business next to a hairdresser. The hairdresser has operated at that site for 21 years. Rosie is finding it impossible to run her yoga business given the high level of noise made by the hairdresser. Prior to Rosie, her yoga premises were occupied by a small chocolate making company for 30 years.

Can the hairdresser argue that Rosie moved to the nuisance, or that there is a defence of prescription?

Answer 21

The hairdresser will be unable to rely on the defence of prescription (timer starts when the claimant moves to the property and can complain of the nuisance) and will be unable to argue that Rosie moved to the nuisance.

Question 22

What is trespass to land, in simple terms?

What requirement do you need to sue in trespass to land?

How is trespass to land different from the other land torts covered?

Answer 22

Trespass to land is a:

1. Physical, DIRECT interference
2. Intentionally or Negligently done

EG: Entering or remaining on someone else’s land.

Trespass is ACTIONABLE PER SE (as your right to your land is to the heavens and to hell, it can be infringed):
- without damage,
- without D being at fault
- without D realising he has entered onto someone else’s land.

Trespass is the ONLY land tort that is ACTIONABLE PER SE.

Question 23

Who can bring a claim for trespass?

Answer 23

Anyone with a freehold or possessory title (right to expel others from the land), e.g. a landlord or licensee in possession.

Question 24

How is “land” defined for trespass to land?

Answer 24

Any real property (e.g. fields, farmland, etc…); any properties or moveable objects built on land, anything in the reasonable lower airspace.

EG: Putting your compost on someone else’s land is trespass to land [direct, physical interference]

Question 25

Give 4 common examples / types of trespass to land.

Answer 25

1. Physical intrusion / entering another’s land (walking across your neighbour’s garden).
2. Remaining on land when permission is revoked (tenant staying beyond expiry of term).
3. Exceeding Permission on land (entering a staff which says “staff only”; removing something from the land without permission).
4. Placing Objects on C’s Land without Permission (fly-tipping your rubbish on someone’s land; throwing tree branches on another’s land; parking car on someone’s driveway without consent).

Question 26

Give an example where negligent intention resulted in liability for trespass to land.

Answer 26

D owed hunting dogs and C owned unfenced areas over which there were wild deer sanctuaries. The D’s dogs strayed into C’s land.

There was a REAL RISK of this happening, so there was a negligent (implied) intention, and trespass was found.

OTHER GENERAL EXAMPLES OF TRESPASS.

• D’s advertisement sign intruded 8 inches into the C’s airspace, as a shop owner. This is trespass as it exceeded the property boundaries.
• D installed an extractor fan that intruded 7.5cm into C’s land at a height of 4.5 metres - it did not interfere with C’s use of the land. Held: this is trespass. It does not matter that it did not interfere (this is a nuisance criteria and trespass is actionable per se!).
• There was no trespass where D flew an aerial aircraft to take photos over C’s land because the aircraft was far above the reasonable airspace used to enjoy one’s land (Lord Berstein v Skyviews).
• D had a license from the Crown to drill into an oilfield, part of which was under C’s land. D’s drilling wells constituted a trespass because C owns the land beneath his land (Bocardo v Star Energy).

Nowadays, the Infrastructure Act 2015 means that geothermal companies get automatic right of access to land 1m-300m below your ground; land owners cannot object, but companies still need to get planning and other permissions.

Question 27

What are defences to Trespass to Land?

Answer 27

1. Consent/Permission (express or implied)
2. Legal Authority
   - e.g. statutory powers of police to search; if they commit a wrongful act on the land, it is a trespass ab initio and they lose their authority
3. Necessity
   - necessary act of trespass to protect a private or public right (limb, life or property).
   EG: Firemen destroyed C’s chimney to prevent the spread of fire to other properties.
   EG: A ship discharged its oil into the sea; this was done to protect the lives of the crew onboard.

Question 28

What are the remedies for trespass to land?

What is the limitation period for the tort of trespass to land?

Answer 28

6 years to bring a claim!

1. Damages
2. Injunction
   - continuing trespass cases
   - cases where trespass is threatened, but must be serious in nature
3. Re-Entry
   - self-help remedy; only reasonable force can be used to re-enter.
4. Recovery of the Land
   - C can seek court order.
5. Mesne Profits
   - C can claim back from the D any money they made whilst occupying the land, or any money lost from D’s occupation, e.g. an overstaying tenant stopped paying rent.

Question 29

What is the definition of public nuisance?

Answer 29

Public nuisance (generally a crime, but can be a tort where none of the other land torts are appropriate) is…

“acts or omissions that materially affect the REASONABLE COMFORT & CONVENIENCE of life OF A CLASS OF [CITIZENS].”
(AG v PYA Quarries).

• in this case, dust and vibrations from D’s quarry were “sufficiently widespread” because they affected 30 homes in the local area.

REQUIREMENTS:
1. Act or omission (one event or continuous)
2. Class of citizens (class of his Majesty’s subjects)
3. Materially affects comfort and convenience

Question 30

Who can sue in public nuisance?

Answer 30

1. The INDIVIDUAL
2. LOCAL AUTHORITY.
   - re. its own damage in common areas, e.g. village greens;
   - re. damage to protect its inhabitants;
3. ATTORNEY-GENERAL
   - where class of inhabitants is affected; AG can claim on their behalf.

Question 31

When can an individual sue for public nuisance?

Answer 31

Unlike private nuisance and the tort in Rylands v Fletcher, individuals DO NOT NEED A PROPRIETARY INTEREST in the land.

Individuals need to show ‘particular, substantial and direct, over and above that suffered by the public at large’ / rest of the affected class of citizens.

The damage “OVER AND ABOVE” the others in the class is also called “SPECIAL DAMAGES”:
—-> (Benjamin v Storr): C showed they had ‘special damage’ because they lost customers due to the road obstruction: they suffered pure economic loss whereas the rest of class had just suffered inconvenience.
—-> (St Augustine’s Link): C was hit in the head with a golf ball whilst driving on a road. The balls were frequently hit into the road and this constituted a public nuisance. The class of persons affected were ROAD USERS and C had suffered special damage because he had suffered personal injury.

The individual’s special damage must be “direct and substantial” (Colour Quest Ltd).

[In this case, D’s employees negligently overfilled a fuel storage tank, leading to a vapour cloud which ignited and exploded. This damaged or destroyed everything in the vicinity, including pipelines and other equipment owned by other companies as well as several nearby residential houses].

Question 32

Who can be sued in public nuisance?

Answer 32

The Creator of the nuisance

Occupier of the land from whence it emanates; or

The Employer, provided the actions were done under the Employer’s control.

—-> (Wandsworth LBC v Railtrack plc): Pooing pigeons on a bridge constituted a public nuisance and the D had to “pigeon-proof” the bridge as a prevention measure.

Question 33

What is meant by “class of his Majesty’s subjects” in public nuisance?

Answer 33

N.B.: Not all members of a class must harmed, just that a representative cross-section of that class has been (PYQ Quarries).

“Class” means “section of the public”; “the community”; “significant section of the community”.

In (R v Rimmington), D sent racially offensive items to members of the public, but this failed to be a “class” of citizens as required in public nuisance.

Question 34

What sort of damages are recoverable from public nuisance?

Answer 34

More loss are recoverable than other land torts, provided they are “reasonably foreseeable” (Wagon Mound No.2):

1. Property Damage
2. Consequential Economic Loss
3. Personal Injury
4. PURE ECONOMIC LOSS
5. Inconvenience (provided it is material/substantial).

(As public interest is negatively affected by public nuisance, I think this is why the remedies are much wider).

Question 35

Can you claim for inconvenience in public nuisance?

Answer 35

Yes, provided the inconvenience is MATERIAL / SUBSTANTIAL.

EG: C owned a coffee shop and D’s auction house, which was next door, caused lots of obstruction like the constant unloading and loading of vans which restricted access to the coffee shop and the owner and patrons uncomfortable. This interference was DIRECT AND SUBSTANTIAL.

Question 36

What defences are available for public nuisance?

Answer 36

The same as private nuisance, but 20-year prescription is NOT AVAILABLE.

1. CONSENT
   —-> C, knowing the SPECIFIC danger to property, has shown (by word or deed) willingness to accept the risks.
   —-> C consented to the colliery activity but not to the specific disruption caused by the coal dust, so no consent defence.
2. CONTRIBUTORY NEGLIGENCE
3. ACT OF A THIRD PARTY
   —-> No liability for acts of third parties/trespassers unless the Defendant continues/adopts the nuisance.
4. ACT OF GOD
   —-> An unusual amount of rainfall in D’s pool led to flood of C’s land, so D had a COMPLETE DEFENCE.

Act of God cases can result in D’s liability where the D adopts/continue the nuisance or fail to rectify hazardous situations on their land (fires not properly put out in (Goldman v Hargrave)). D was aware of the danger and failed to act with reasonable prudence to remove the hazard (Goldman v Hargrave; followed in Leakey v National Trust).

5. NECESSITY
   - imminent danger
   - D’s act necessary to prevent further harm / protect limb, life or property
   - no alternative course of action
   - harm caused by D’s acts was proportionate.
6. STATUTORY AUTHORITY
   —-> D constructed an oil refinery on his land, which interfered with C’s reasonable use & enjoyment due to smell, noise, and vibration. C had no claim because the construction of the oil refinery was authorised by an Act of Parliament.

Question 37

What remedies are available for public nuisance?

Answer 37

Damages or Injunctions

Injunctions are the only remedy available if the claimant is the Local Authority or Attorney General.

Question 38

Mishal has a party at her house. Her friends park their cars across many of Mishal’s neighbours’ driveways so the neighbours cannot get out. Gita is a beautician who visits her clients at their houses. She is parked in one of her client’s driveways when it is blocked by Mishal’s friend’s car. As a result, she cannot leave for the rest of the afternoon and so she misses her remaining appointments. She suffers a loss of income.

Which of the following is correct in the tort of public nuisance?

1. A class of people have been affected by Mishal’s actions. Gita cannot bring a claim as an individual.
2. A class of people have been affected by Mishal’s actions. Gita cannot bring a claim as she does not own the land affected.
3. A class of people have been affected by Mishal’s actions. Gita cannot bring a claim for economic loss in public nuisance.
4. A class of people have been affected by Mishal’s actions. Gita cannot sue Mishal in public nuisance as it was not Mishal’s car blocking the client’s driveway.
5. A class of people have been affected by Mishal’s actions. Gita can bring a claim for her economic loss as an individual.

Answer 38

5. A class of people have been affected by Mishal’s actions. Gita can bring a claim for her economic loss as an individual.

It is likely a class of people have been affected as we are told that many neighbours have been blocked in. Gita can bring a claim as an individual as she has suffered special damage (i.e. over and above the rest of the class). The class have suffered inconvenience.

Pure econ. loss is recoverable for PUBLIC nuisance only (as here).

Question 39

As a joke, Troy sends 50 of his friends envelopes full of talcum powder with a note saying ‘anthrax’. Which of the following is correct in the law of public nuisance?

1. Troy’s friends cannot bring a claim in public nuisance as they consented to Troy’s actions by being his friends.
2. Troy’s friends cannot bring a claim in public nuisance as Troy’s acts amount to a crime.
3. Troy’s friends cannot bring a claim in public nuisance as 50 people will not amount to a ‘class’.
4. Troy’s friends cannot bring a claim in public nuisance as they have not suffered a common injury.
5. Troy’s friends cannot bring a claim in public nuisance as they have suffered personal injury.

Answer 39

4. Troy’s friends cannot bring a claim in public nuisance as they have not suffered a common injury.

In order to be defined as a ‘class’, the friends must have suffered a ‘common injury’, i.e. be affected at more or less the same time and in the same location. This has not happened here. For example, in (R v Rimmington) the defendant sent around 500 racially offensive items to people across the country. The people who received the items were not a ‘class’ in the way required by public nuisance.

Question 40

What is the tort in (Rylands v Fletcher) and when does it apply?

What were the facts of Rylands v Fletcher?

Answer 40

1. Deliberate accumulation on the defendant’s land;
2. A thing likely to do mischief if it escapes;
3. Escape;
4. Non-natural use of land;
5. The damage must not be too remote.

D is prima facie liable for all the damage that is a natural consequence of the thing’s escape / non-natural use of the land.

Facts: The defendant owned a mill and constructed a reservoir on their land. The reservoir was placed over a disused mine. Water from the reservoir filtered through to the disused mine shafts and then spread to a working mine owned by the claimant causing extensive damage

Held: D was liable for the damage caused by the non-natural use of the land.

Question 41

Who can bring a claim under the tort in Rylands v Fletcher (T-in-RvF)?

Answer 41

The T-in-RvF is a subspecies of nuisance, sot the claimant must have a proprietary interest in the land (note the WIDE definition of land in nuisance: any real property, building on land, or any moveable property like a vessel, aircraft or vehicle).

EG: Freehold owner; leasehold tenant; licensee with exclusive possession.

Question 42

What types of losses are recoverable under the T-in-RvF?

Answer 42

Only property damage and consequential economic loss.

Question 43

Who can be sued in the T-in-RvF?

Answer 43

The person bringing the dangerous thing onto the land OR the occupier of the land, under whose control this thing was brought onto the land.

Question 44

Explain the 5 requirements under the Tort in Rylands v Fletcher in full detail, with any case examples or fact patterns you can remember.

Answer 44

1. DELIBERATE ACCUMULATION ON D’S LAND;
   - D must bring something onto the land and let it accumulate their; no liability for the spread of something natural, e.g. thistle that naturally grew on D’s land (Giles v Walker)
2. A THING LIKELY TO DO MISCHIEF IF IT ESCAPES;
   - the thing need not be dangerous by itself; only if it escapes.
   - the bar is very high: “exceptionally high risk” [if it escapes] (Transco case). In Transco, the D owned a pipe carrying water and it leaked. It caused an embankment to fall on D’s land. This left C’s gas pipe dangerously exposed, and they incurred £94,000 to fix this. The UKHL held that D’s water pipe did NOT carry an “exceptionally high risk” if it were to escape, so the claim failed.
3. ESCAPE;
   - can be slow and over a long period of time (Cambridge Water)
   - the thing accumulated must escape; e.g. tires were stored and then caught fire, and the fire damaged C’s land; the claim failed as the tires had not escaped (Stannard v Gore).
   - if fuel is accumulated, it can be seen as escaping with the smoke/fire/explosion because the fuel is a component in the fire (Colour Quest Ltd).
   - MUST BE REASONABLY FORESEEABLE THAT, IF THE THING ESCAPED, IT COULD CAUSE DAMAGE (Cambridge Water), where it was NOT reasonably foreseeable that chemicals spilled on a concrete floor could seep through and end up infecting the C’s water through a borehole.
4. NON-NATURAL USE OF THE LAND;
   - water pipe for domestic use in block of flats is natural (Transco)
   - the oil refinery was non-natural, even in an industrial context, because of the QUANTITY OF OIL USED (the refinery was overfilled, which caused the nuisance) (Colour Quest Ltd).
   - Storing substantial quantities of a chemical on industrial premises was an “almost classic case of non-natural use” (Cambridge Water).
5. THE DAMAGE MUST NOT BE TOO REMOTE.

Question 45

When assessing non-natural use of the land, what factors are considered?

Answer 45

All factors are considered, especially the type of area (rural, industrial, block of flats, urban, etc…).

Quantity of the “thing” kept is relevant, e.g. if more oil was accumulated than standards allowed, this would render the oil refinery a “non-natural” use of the land (Colour Quest Ltd).

Storing substantial quantities of a chemical on industrial premises was an “almost classic case of non-natural use” (Cambridge Water).

Water pipe for domestic use in block of flats is natural (Transco)

Question 46

What defences are available for the Tort in Rylands v Fletcher?

Answer 46

1. Common Benefit
   EG: Sprinkler system in the building that C rented from D - no liability. The sprinklers were equally for the use of C and D.
2. Act or Default of the Claimant
   - if the thing’s escape is wholly caused by C’s acts, D is not liable.
   EG: C dug under D’s canal which led to flooding on C’s land.
3. Statutory Authority
   - unless you exceed the statutory authority, e.g. by using excessive quantity of oil and overfilling the refinery (Colour Quest).
   EG: D was under a statutory obligation to maintain high water pressure in his pipes. meaning any escape was necessarily cause damage. D was not liable via this defence.
4. Act of a Third Party
   - must be an unforeseeable TP act over which D had no control
   EG: TP deliberately blocked the waste pipe and left the tap running, causing a flood on C’s land. D was not liable as he could not have reasonably known of the TP’s act, so he couldn’t have done anything to prevent the harm.
5. Act of God
   - D not liable where an unforeseeable natural occurrence happens, e.g. high flooding, freak rain amounts, earthquakes.
   - If it is foreseeable to reasonably guard against the possibility of something, D could be liable (Transco).
6. Contributory Negligence
7. Consent

Question 47

Max operates a mechanics business from his home. He stores chemicals used to “cure” car body filler. The chemicals are stored in barrels. However, there is a crack in one of the barrels, and the chemicals leak onto Max’s neighbour’s property killing all his neighbour’s plants. The presence of the crack was not known about and the leak was not apparent.

Which of the following is most accurate in the tort of Rylands v Fletcher?

1. The neighbour will be able to claim for damage to his plants as the harm suffered was foreseeable if the chemicals escaped.
2. The neighbour will be able to claim for damage to his plants as any property damage caused by an escape of a substance from the defendant’s land is recoverable.
3. The neighbour will be able to claim for damage to his plants as Max is responsible for anything he brings onto his land.
4. The neighbour will be unable to claim for damage to his plants as the escape of the chemicals was not foreseeable.
5. The neighbour will be unable to claim for damage to his plants as Max did not know about the leak.

Answer 47

1. The neighbour will be able to claim for damage to his plants as the harm suffered was foreseeable if the chemicals escaped.

Remember that the escape does not need to be foreseeable, nor does the thing need to be inherently hazardous.

It was reasonably foreseeable that if the chemicals escaped, they could kill plants.

Question 48

In private nuisance, can an owner who has rented out his property bring a claim?

Answer 48

No (he is no longer the occupier; the tenant can as he has exclusive possession), unless the damage caused by the nuisance is PERMANENT, e.g.: toxic chemicals polluting the soil.