Tort - Nuisance (10) Flashcards
What is the tort of nuisance?
Nuisance: Tortious nuisances are torts involving disturbances to or from land.
What is the tort of private nuisance?
Private Nuisance: Private nuisance is unreasonable interference with use or enjoyment of land. There are various elements.
Parties to Tort
Parties to Tort: This Tort predominantly applies to occupiers of land.
(1) Claimant: Claimant has exclusive possession of affected land (i.e. owner or tenant).
>Non-occupying owners may sue if nuisance has caused permanent physical damage.
>Licensees and non-owning occupants cannot sue.
(2) Defendant: Defendant must be the creator of the nuisance, or occupier of the land containing the nuisance. They are strictly liable, it is the interference and not the defendant that must be ‘unreasonable’.
>Creators are liable even if not in possession or occupation.
>Occupiers are liable for nuisances created, as well as those they have failed to abate (including by nature).
>Landlords are jointly liable to the extent of any contractual failure to remedy a nuisance (Payne v Rogers).
Defendant’s Land
Defendant’s Land: The nuisance must emanate from land (typically the Defendant’s).
(1) Emanation: Nuisances must be consistent, comprising a continuing state of affairs (Spicer v Smee).
>Alternatively, the harm may be isolated, provided it emanates from a continuing state of affairs.
(2) Land: The nuisance must originate on the land, such as band practice, rotting compost, or tree roots.
Interference
Interference: The nuisance must comprise: a) encroachment; b) direct damage to land; or c) disturbance of the claimant’s quiet enjoyment of the land.
(1) Encroachment: Things encroaching the land, such as overhanging branches.
(2) Direct Damage: Things directly damaging the land, such as vibrations causing the structure to collapse.
(3) Disturbance: Things interrupting the claimant’s right to ordinary comfort on the land, such as noises, smells, dust - but not ‘elegant or dainty’ issues (Walter v Seife) or interruption to signal (Hunter v Canary Wharf).
Personal Injury: Damage to person is not nuisance, it is negligence - personal injury cannot be recovered in private nuisance (Andrea v Selfridge).
Unreasonable
Unreasonable: The interference must be ‘substantial and unreasonable’ relative to the local area (Sedleigh-Denfield).
(1) Encroachment: Encroachment is prima facie unreasonable.
(2) Damage and Disturbance: Damage and disturbance must be unreasonable to the objective claimant. Abnormal sensitivities are disregarded at this stage (but may be considered in remedies if objective unreasonableness is met).
Malice: Malicious nuisance is more unreasonable (Hollywood v Emmett).
Duration: Longer nuisances are more unreasonable.
Frequent: Frequent nuisances are more unreasonable.
Abnormality: Abnormal nuisances are more unreasonable.
Harm: Harmful nuisances are proportionately more unreasonable.
Neighbourhood: The character of a neighbourhood may indicate unreasonableness in respect of disturbances (Halsey v Esso).
>Planning permission cannot make a nuisance lawful, but may help to demonstrate the character of the neighbourhood for the purposes of demonstrating unreasonableness.
>Public benefit associated with a nuisance does not make a nuisance more reasonable, but may affect injunctions (Adams v Ursell).
Defences
Defences: There are a number of defences available.
(1) Prescription: Nuisance has existed unchallenged for 20 years against the Claimant.
(2) Statutory Requirement: Nuisance was an inevitable result of compliance with a statute.
(3) Volenti: The Claimant freely consented to the nuisance with full knowledge.
(4) Necessity: Nuisance was a consequence of a reasonable response to an imminent danger to life or limb, unless the danger was caused by the Defendant (Southport v Esso).
(5) Act of God: Nuisance was a result of a secret unobservable process of nature such as lightning, unless the Defendant allowed the nuisance to continue (Wringe v Cohen).
(6) Contributory Negligence: The Claimant contributed to their harm.
(7) Excluded Defences: The following are not defences:
Came to Nuisance: It is irrelevant that a claimant knew of the nuisance when they moved into occupation, unless they changed the nature of the land and then complained.
Public Benefit: It is irrelevant that the nuisance is a public benefit (but may affect remedies).
Third-Party: It is irrelevant that a third-party was involved.
Planning Permission: Planning permission cannot be used to legitimise a nuisance (Wheeler v Saunders).
Remedies
Remedies: The principal remedies to private nuisance are damages, injunctions, and abatement.
(1) Abatement: Abatement is the removal of the nuisance by the Claimant. Notice is required, unless it is an emergency or the Claimant requires no access to the Defendant’s land (Lemmon v Webb).
(2) Damages: Damages are recoverable for pre-trial loss, and must be reasonable.
Property Damage: Quantified at cost of repair, or diminution in land value.
Loss of Amenity: Loss of amenity may be awarded for disturbance, difficult to quantify (Hunter v Moss).
Loss of Profit: Loss of profit can be awarded.
(3) Injunction: Injunctions can be awarded to prohibit interference if reasonable.
Reasonable: Injunctions must balance the harm to the Claimant with the public benefit of the nuisance. For example, a noisy cafe may have their opening times limited to daylight hours.
Damages in Lieu: Minor interferences may be compensated by damages in lieu of injunction (Shelfer v London).
What is the rule of Rylands v Fletcher?
Rylands v Fletcher: In an adapted form of private nuisance, persons who keep dangerous substances on their land, which escape and cause damage to a neighbour’s property, may be strictly liable for the damage caused (Rylands v Fletcher).
(1) Dangerous Substances: Dangerous substances are anything likely to damage a neighbour’s land if they were to escape, such as cattle, water, pesticides, sewage.
>This must comprise an objectively non-natural use of the land (Transco v Stockport).
(2) Defendant’s Land: The substance must be on the Defendant’s land for their own purposes. This means the Defendant must be the occupier of that land.
(3) Escapes: The substance itself must escape the Defendant’s land onto the Claimant’s land. This can be one-off or continuous. This means the Claimant must be the occupier of the neighbouring land.
>This means substance and not its byproduct, i.e. a fire spreading from tyres to land is not sufficient.
(4) Damages Claimant’s Land: The substance must cause damage of a type recoverable in private nuisance, meaning: a) encroachment; b) direct damage; or b) interruption of quiet enjoyment.
>Must have been a reasonably foreseeable type of damage (Cambridge v Eastern).
Defences
Defences: A number of defences apply.
(1) Third Party: The escape was the unforeseeable act of a third-party.
(2) Statutory Requirement: Same as private nuisance.
(3) Volenti: Same as private nuisance.
(4) Act of God: Same as private nuisance.
(5) Contributory Negligence: Same as private nuisance.
Remedies
Remedies: A number of remedies apply.
(1) Abatement: Same as private nuisance.
(2) Damages: Same as private nuisance. (excludes personal injury).
(3) Injunction: Same as private nuisance.
What is the tort of public nuisnance?
Public Nuisance: Public nuisance is harm that causes nuisance to a group of people, but particular harm to an individual claimant.
(1) Nuisance: In effect, private nuisance has affected the ‘reasonable comfort and convenience’ of a class of His Majesty’s Subjects. This means an identifiable group within a given area (need not be the entire group).
(2) Particular Harm: The Claimant suffered harm above and beyond the identifiable group. This does not need to be harm to land and can be one-off. The Claimant does not need to be a land occupier.
>The harm does not need to be reasonably foreseeable.
(3) Strict Liability: The Defendant is strictly liable for the harm. It is the interference, not themselves, that must be unreasonable.
Defences
Defences: Typically the same as in private nuisance.
(1) Prescription: Same as private nuisance.
(2) Statutory Requirement: Same as private nuisance.
(3) Volenti: Same as private nuisance.
(4) Necessity: Same as private nuisance.
(5) Act of God: Same as private nuisance.
(6) Contributory Negligence: Same as private nuisance.
Remedies
Remedies: Typically the same as in private nuisance.
(1) Abatement: Same as private nuisance.
(2) Damages: Same as private nuisance. (but includes personal injury (Castle v St Augustine)).
(3) Injunction: Same as private nuisance.
