The Law of Tort Tort can be fault based I.e., Negligence: Occupiers liability. The plaintiff has to prove not only a breach of duty of care but also that the breach was unreasonable I.e. the result of negligence. Strict Liability. I.e. Rylands versus Fletcher. Here it need only be proved that the damage has been caused by the defendant. if it has, it is irrelevant that the defendant took all necessary care. Nuisance. There are three kinds. Private Public and Statutory. Private. All reasonable interference with another‟s enjoyment of their property. It involves disputes between owners of adjacent land. It involves indirect interference: direct would be covered by the tort of trespass. It is an ancient tort and a common law tort. There are three elements. 1) An indirect interference with the enjoyment of land/property. 2) Damage to the plaintiff. 3) The interference has to be reasonable. 1) Interference: indirect caused by irritants smoke, smells, noise, vibrations, gas, branches, roots, water, petrol. In most but not all cases, the nuisance is a result of a state of current affairs or a recurrent activity rather than one offs. But if a one off causes physical damage it can be a (legal) nuisance. The interference must be substantial and in deciding whether it is the court must weigh up the two conflicting interests. The right of the plaintiff to peaceful enjoyment of their property. And the right of the defendant to use their property in a reasonable way. Damage The interference must have caused damage which is usually discomfort or inconvenience, but it may actual physical injury to the land, but not personal injury which would be covered by a negligent action. St Helens‟ Smelting Company v Tipping (1865) The owners of a copper smelting works were held to be a nuisance to the owner of land, who‟s shrubs and tree‟s were damaged by what can be regarded as a nuisance (this is continually under review in the House of Lords) in Hunter v Canary Wharf (1996) Because loss of TV reception was held to be analogous to loss of prospect which in Andreas‟ case was held not to be part of an actionable nuisance, interference of the TV reception was held not be an analogous nuisance. Unreasonableness. The interference must have been unreasonable. The law works on the premise that there must be give and take between the neighbours and we are all expected to put up with a certain level of irritation. However, interference which goes beyond the normal ??????
There are 5 elements which need to be established in the private nuisance. 1) Sensitivity. a) A defendant will not be responsible for damage to another‟s property which occurs solely because the unusually sensitive character of that property. Robinson v Kilvert (1889) The plaintiff occupied the ground floor of the defendant‟s property, which he used for storing brown paper. The defendant‟s business of making paper boxes., needed a hot and dry atmosphere. The heating system for which for which caused the plaintiff‟s premises to become hotter and drier thus damaging the brown paper and reducing the value. The Court ruled against the plaintiff on the grounds that the heating system had not caused a general nuisance to the plaintiff (i.e. his workman had not been inconvenienced by it, and the damage to the brown paper was a result of it‟s unusual sensitivity so there was no nuisance. b) McKinnon Industries v Walker (1951) The Plaintiffs enjoyment of the land were damaged by fumes and sulphur dioxide gas from the defendants factory and his rare orchids were also damaged. The defendants claimed that even though they might be liable for the general interference, they should not be liable for the damage of the orchids. Since they are notoriously difficult to grow and are highly sensitive. The court ruled in favour of the plaintiff because his right to enjoy his land had been damaged and therefore could also claim protection for his more unusual and sensitive activities. c) St Helen‟s Smelting Co v Tipping (1865) Physical damage to property which is not due to unusual sensitivity will always be actionable. B) Location. Where the properties are situated will often have a crucial baring in nuisance when a court is deciding what is reasonable they will have to take into account where the activity is taking place. Thus a property owner in the middle of London cannot reasonably expect the same peace and quiet as a property owner in rural countryside. a) St Helen‟s v Tipping (1865) The plaintiff‟s estate was situated in an industrial area and the Lords had to distinguish nuisances which interfered with the plaintiff‟s right to enjoy his property. They ruled that in the former case property owners had to put with a level of discomfort common to the area in which they live. However, they were not expected to put with physical damage to their property so an injunction was granted. b) Sturges v Bridgman (1879) The plaintiff was a doctor who extended his consulting rooms to back onto a sweet maker‟s premises. He was then disturbed in his work by the noise from the confectioners. He sued in negligence. He won because the area in which he lived consisted mainly of doctor‟s consulting rooms and “what would be a nuisance in Belgrave square would not necessarily be one in Bermondsey.”
C) Duration The longer a nuisance goes on the more likely it is to be a nuisance. D) Malice
Motive is not usually relevant in tort as long as the damage is caused, it does not matter usually whether it was caused maliciously or not. However, the question of Malice can be relevant to the question of reasonableness in Malice. Christie v Davey (1895) The plaintiff was a music teacher who held musical parties in his house. The defendant, the next door neighbour deliberately tried to disturb the lessons and parties by banging on the wall, hammering trays and blowing whistles. The court held his malicious motive made his contact unreasonable and therefore an actionable nuisance. Had he not been trying to disturb the lessons. He might have had the right to make the noise., just as the plaintiff did with his lessons and his parties. Hollywood Silver Fox Farm v Emmett (1963) A Silver Fox breeder sued in nuisance after a neighbour had deliberately fired a shot gun close to breeding silver foxes which caused the loss if several cubs. The Court held that it was an actionable nuisance because the firing had been malicious. E) Public Liability. It has long been established that there is no public interest defence to a nuisance action. Bellew v Northern Ireland Cement Company Limited (1948) Northern Ireland‟s only cement factory was closed down for causing nuisance despite the urgent need for building works in the post war years. However there is modern case law that suggests that public utility may be relevant depending on the remedy being sought. Miller v Jackson (1977) The plaintiff lived bedside a cricket club and balls entered his garden about seven or eight a year. The club had made every effort to stop this, the majority of the Court of Appeal agreed that there had been a nuisance but refused to grant an injunction on the basis that the usefulness of the club on the local community outweighed the plaintiffs protest. “So who can be sued?” 1) The creator of the nuisance. 2) The occupier of the land. 3) The owners of the land. 1)The creator of the nuisance. Anyone who creates a nuisance can be sued for nuisance regardless of whether that person owns or occupies the land from which that person originates. 2)The occupier. In the majority of nuisance cases, it is the occupier who is being sued. Occupiers are liable nuisance caused by themselves and by their employees, under the principal of “vicarious” liability. If the nuisance was created by someone other than the occupier or employee it must be proved that the defendant knew about the situation and it‟s possible consequences. Sedleigh-Dewfield v O‟Callaghan (1940) Here a trespasser had laid a pipe in a ditch, which had become blocked with leaves. As a result, water overflowed on to the plaintiff‟s land. The defendant knew the pipe existed because one of his employees was responsible for clearing the ditch. The court held that this employee should have realised the risk of flooding and therefore the defendant was held to be vicariously liable in nuisance.
3) The owners A landowner that leases the land will not generally be liable for nuisances created by tenants because usually, the landlord is not in control of the land. The tenant is. However there are exceptions, a) where a nuisance already existed when the land was left and the landowner knew or ought to have known. b) Where the landowner could be seen to have „authorised‟ the nuisance e.g. Tetley v Chitty (1986) Defending council allowed a go-kart club to use their land, nearby residents were disturbed and sued the council, who said they were not liable because they had neither created the nuisance nor permitted it. However the court held that as such noise was an ordinary and necessary result of running a go-kart club permitting the running the club amounted to authorisation of the club. (Only Parliament has the power by statue to authorise the club which would otherwise be actionable nuisance.) Chartered Trust PLC v Davies (1997) Landlords of a shopping mall were held liable for nuisance when they let a shop to pawnbrokers who‟s queues of customers outside Mrs. Davies‟ shop caused a reduction in potential customers to her „niche‟ shop selling puzzles and executive toys. c) Where the landlord has a right or duty to enter and repair and the nuisance is caused by failure to do so. Who can sue? Until very recently it was settled that the plaintiff had to have an interest in the land to sue in private nuisance. Malone v Laskey (1907) A lavatory cistern fell on a wife‟s head, which was caused by vibrations from next door however he was unable to sue because she was not the proprietor. She did not hold the interest of the property. Khorasandijian v Bush (1994) The plaintiff was a sixteen year old girl who was being plagued by menacing phone calls by a former boyfriend. He was jailed in 1992 for threatening to kill her. But on his release the phone calls resumed. The Court of Appeal said she could sue (she lost in the first instance.) Lord Dillon said the following…‟it is ridiculous if in this present age the law that is the making of deliberately harassing and pestering phone calls to a person is only actionable in the civil courts if a recipient of the calls happens to have a freehold or a leashed proprietary interest in the premises in which he or she has received the calls.‟ 14th February 2000 In 1996 in Hunter v Canary Wharf the Court of Appeal followed it‟s decision in Khorasandijian v Bush (1994) and specifically stated that it was no longer appropriate to limit the right to sue by reference to proprietary interest in the land. When Hunter v Canary Wharf went to the House of Lords in 1997, who overruled the Court of Appeal in Khorasandijian and reversed the Court of Appeal in Hunter stating that it was necessary to have a proprietary interest to sue in nuisance as the law developed to settle disputes between neighbouring land owners to break this link would lead to a blurring of distinction between nuisance and other torts in negligence which would lead to confusion and uncertainty.
Public Nuisance. Public Nuisance deals with situations where a number of people are affected by the nuisance and it is not confined to interference with enjoyment of the property. Public Nuisance is a crime to be prosecuted by the Police or other public authority, it would be inappropriate for large numbers of individuals to have to sue through the civil courts. Public Nuisance was defined in Attorney General v PYA Quarries Ltd (1957) As an activity „which materially affects the reasonable comfort and convenience of life of a class of Her Majesty‟s subjects.‟ A class. A nuisance will generally be deemed to affect a class of people, if it affects are so wide as to make it unreasonable to expect a single individual to take action against it, it is not necessary to show that every member of the class has been affected so long as a representative cross section has been. Special Damage Every public nuisance is a crime to be dealt with by a prosecution but if an individual can show that they have suffered special damage over and above that suffered by the rest of the class of people, they can sue for damages. Benjamin v Storr (1874) The defendant kept horses and vans in a narrow street. Light was obstructed on a highway so he was obstructed for causing a public nuisance. However the Plaintiff was also able to recover damages in a private section because he ran a coffeehouse whose customers had been adversely affected by the smell from the horses. Statutory Nuisance. In the post war period Parliament has passed a number of local and other bodies, individuals and companies for creating nuisances. E.g. Clear Air Act (1956) Controls smoke emissions. Control of Air Pollution Act (1974) Controls Pollution of Noise. Defences in Nuisances. 1) Prescription. “Why didn‟t you do something about it before now.” If the nuisance has been actionable for at least twenty years, the defence of prescription can be raised. In Sturges v Bridgman the confectioner raised this defence but he was found liable because the noise from his sweet making process did not become a nuisance to the consultant until he built his new consulting rooms closer to the confectioner. 2) Statutory Authority. If Parliament has authorized an activity, which creates a nuisance, it will not be actionable as long as all due care and skill has been taken to avoid it. Allen v Gulf Oil Refining (1981) Local residents brought an action against an oil refinery. The company‟s defence was that the nuisance was an inevitable result of operating the refinery, which they had been given statutory authority to do.
The plaintiffs found that the act only gave the company the power to compulsorily purchase the land and build the refinery. It did not give them express power to operate it. The Courts held that such a power could be implied and refused to grant an injunction against the refinery. Inapplicable Defences. 1) Coming to the nuisance. It is no defence that the nuisance was already in the place when the plaintiff arrived. Sturges v Bridgman . Miller v Jackson if the fact that the plaintiff had known that he was moving next to a cricket ground was no defence for the cricket club (although Lord Denning thought at it should be!) 2) Public Utility. Traditionally this was not a defence to nuisance e.g., Adams v Ursell (1913). An injunction was granted against a fish and chip shop in a residential area and despite the fact closing it would cause hardship to customers. In Miller v Jackson the public utility argument did carry such weight. The Court of Appeal granted an injunction because the cricket ground was a useful amenity. 3) Due care and skill Nuisance is a strict liability tort so the fact that the defendant was not negligent or even tried to stop the nuisance is irrelevant.
Nuisance flow chart. Has there been an interference?
Location? Duration? Damage? ------Unreasonable? Sensitivity? Public Utility? Malice?
Who can sue? Who can be sued?
Remedies 16th February 2000 1) Injunction An equitable remedy. Injunctions can be complete or partial. Kennaway v Thompson (1980) Local residents sought an injunction to shop a water sports club from causing excessive noise on the plaintiff‟s land. The club argued that the sport was in the best interest. The Court of Appeal granted an injunction but not a complete one. It imposed limitations on the clubs activities.
The second remedy is damages. 2) Damages. For interference of enjoyment of property, economic loss, injury to the land (St Helen‟s smelting company v Tipping.) There is a remoteness of damage test, so if the damage is too remote, the damage will fail. 3) Abatement An Abatement order allows a plaintiff a self-help remedy to abate the nuisance (e.g. allows you to cut back an overhanging hedge.)