10: Part V Nuisance, Economic Wrongs & Fraud; Part VI Defences & Remedies

Question 1

linksto other laws

What is a nuisance in law?

Answer 1

• ‘Noise, smell, vibration, pollution.’
• Use of land, in a way that affects others’ enjoyment of their land.
• Plus quam tolerabile – morethan is tolerable
• 19th century – basis of managing environmental harms.
• (Water pollution, air pollution – superseded by modern statutory regimes, but the common law still exists.)
• Links to – law of negligence; trespass; aemulationem vicini (actions in spite or malice); property law (nuisance is a ‘property delict’).
• May include harm to property and also ‘amenity nuisances’, which make life miserable for one individual or the wider community

Question 2

Compare English law of nuisance

Answer 2

English law - both public and private nuisance.

• Public nuisance is a criminal offence - similar to breach of the peace in Scotland.
• Private nuisance in England is subdivided into several categories and generally more complex – reflecting many more cases, as expected in a larger jurisdiction; see e.g. Fearn & others v Trustees of the Tate Gallery [2023]UKSC 4.
• And usually must have a private right to sue – not a wider neighbourhood issue.
• Be very wary therefore of English case law and online sources! Some case law may be useful in Scotland, but unlike negligence the law is not broadly the same.
• It is the area with the greatest differences between Scots law of delict and the English law of tort.
• However, both jurisdictions have broadly the same regime for ‘statutory nuisance’

Question 3

What are some common types of nuisance actions

Answer 3

• A large number of early cases concerned water pollution between riparian proprietors, in the early days of industrialisation eg the ‘Esk cases’ (on the River Esk, not far from here).
• Another set involved urban ‘amenity nuisances’ as industrialisation and urbanisation took hold – such as noxious fumes, but also waste in the street, animals etc.
• A further set have involved damage to buildings, through water damage or subsidence –modern cases are most likely to involve these.
• And then there are cases involving hazardous substances. See eg Chalmers v Dixon (1876) 3R 461 – an accumulation of combustible materials, or Kerr v Earl of Orkney (1857) 20D 298 on flooding – again there are modern flooding cases.
• These categories are not exclusive; see the notes in Thomson for citations of early (and more recent) cases

Question 4

What are some general issues that may arise regarding nuisance

Answer 4

• Whether nuisance should relate to novel or extraordinary uses of land – this would not be a presumption in Scotland, and there is mixed authority in England (see e.g. Fearn).
• Whether the nature of the harm needs to be foreseeable – here the answer is probably yes in both Scotland and England, though the main authority is EnglishCambridge Water v Eastern Counties Leather [1994] 2 AC 264.
• Whether planning permission can stop something being a nuisance (probably not, but it may change the nature of the locality e.g. to industrial use).
• The extent to which ‘statutory authority’ is a defence

Question 5

What factors must be considered in nuisance cases

Answer 5

• More than is tolerable – in context, case by case basis.
• The location of a nuisance – some activities may be expected in the town but not the country, or vice versa – farm machinery, animal noise, hunting and traffic noise, light pollution, construction noise
• The sensitivity of the pursuer – this will be an argument for the defender! So we would look at this from the point of view of the reasonably robust person.

MacBean v Scottish Water [2020] CSOH 55, [2021] CSIH 36

• Remedial works were undertaken to address smell nuisance from a waste water treatment plant; subsequently the impact was ‘irregular,faint [and] transient’ [para 79].
• Note also public interest question – there is a clear public interest in having wastewater collected and treated

Question 6

Reference 2 cases

Explain public interest in relation to nuisance

Answer 6

Public interest does not prevent something being a nuisance and is not a defence, but, may affect the remedies:

Ben Nevis Distillery (Fort William) Ltd v North British Aluminium Co 1948 SC 592:

• Noxious fumes, but a significant public interest; held this was not a reason to refuse the proof; and then, 1949 SLT (Notes) 14, that ‘reluctantly’, interdict would be deferred for remedial works.

Webster v Lord Advocate1985 SC 173:

• Nuisance action regarding the noise of the Military Tattoo and ofthe construction of the stands

Question 7

three points and one case

What is the importance of timings/ subsequent changes in nuisance cases?

Answer 7

• Would it make a difference if the Tattoo had taken place for many years before Ms Webster bought her flat?
• ‘It is clear that whether the man went to the nuisance or the nuisance came to the man, the rights are the same’ (Fleming v.Hislop (1886) 13 R (HL) 43, 49).
• But, long negative prescription (20 years) may apply - Prescription & Limitation (Scotland) Act 1973 s 7.
• Refers to the time period after which a claim or right expires due to the passage of time. Can affect the ability of a plaintiff to bring a claim for damages or seek injunctive relief against a nuisance.
• The “agents of change” principle in the law of nuisance refers to the idea that when a plaintiff moves into an area with pre-existing conditions that may cause nuisance, they cannot later complain about those conditions if they were already present and known at the time of moving in. This principle recognizes that individuals who choose to live or work in certain areas assume the risks associated with those conditions.
• The agents of change principle is often invoked in nuisance cases to determine whether a defendant’s activities or conditions constitute a nuisance. It considers whether the plaintiff or the defendant was the “agent of change” in the situation:

Question 8

nuisance: fault and liability for damages

What is the requirement for fault or culpa

Answer 8

• Typically involves assessing whether the defendant’s actions fell below the standard of care expected of a reasonable person in similar circumstances.
• Factors such as the nature and severity of the interference, the foreseeability of harm, the defendant’s knowledge or intent, and any available defenses may also be considered in determining fault.

Question 9

Nuisance: modern statutory law

Explain modern statutory law and statutory nuisance

Answer 9

• A wide variety of statute may relate to activities that could be a nuisance at common law – for example the Anti-Social Behaviour etc. (Scotland) Act 2004, or the Protection from Harassment Act 1997.
• The Environmental Protection Act 1990 Part III as amended contains a UK-wide regime for statutory nuisance.
• This replaced previous provision in a series of Public Health Acts from the mid -19th century, addressing nuisance activities in urban environments.
• While the common law provided a framework for addressing nuisances through private litigation, not sufficient for addressing the complex and widespread issues associated with industrialization and urbanization. Public regime was necessary to establish comprehensive regulations, allocate resources effectively, and protect the broader interests of society in the face of evolving environmental and public health challenges.
• This regime covers many of the ‘amenity’ activities that might still be a problem today – from noise and dumping of waste (though there are other controls on that) to keeping animals in cities.

Question 10

Nuisance: modern statutory law

Define statutory nuisance under the Environmental Protection Act 1990 as amended

Answer 10

S 79 defines statutory nuisances as being ‘prejudicial to health or a nuisance’, i.e.including anything that is a nuisance at common law.

It specifies that statutory nuisances include:the state of premises; smoke, fumes and gases; dust, steam, smell or effluvia; accumulations or deposits; the keeping of animals; insect infestations; artificial light; noise; and ‘any other matter declared by any enactment to be a statutory nuisance’.

The rules are enforced by local authorities (s 80) which can serve abatement notices on the person responsible, the owner if a structural issue, or the owner or occupier if the responsible person cannot be found. There are special rules on noise, both ‘street noise’ and noise from other houses.
Under s 82 aggrieved persons can go directly to the Sheriff Court. This is unusual in apublic law regime.
The Public Health (Scotland) Act 2008 Part 9 makes some amendments, including protecting insects on biodiversity grounds and clarifying rules on light pollution

Question 11

Definition, Scotland, remedy, contect, damages, statutory provisions

Give a short summary on nuisance

Answer 11

• Nuisance is the use of land that interferes with others’ enjoyment of their land.
• In Scotland, nuisance can protect neighbourhood amenity as well as damage toproperty.
• The usual remedy for a nuisance is interdict.
• A nuisance must be ‘more than is tolerable’, in context.
• If the pursuer wishes to claim damages they will have to aver some fault, which may be malice, or intention, or recklessness, or negligence. If the fault is negligence, the general rules of negligence will apply.
• Modern statutory provisions are often available for amenity nuisances but thecommon law also applies

Question 12

What is the general rule regarding economic delicts

Answer 12

courts are unwilling to award damages for purely economic loss

Question 13

two cases

Describe causing loss by unlawful or lawful means as an economic wrong

Answer 13

Allen v Flood [1898] AC1, HL

• An individual can wield economic pressure to force another to act to their own/ another’s economic harm-so long as they are using lawful means.

OBG v Allan [2008] 1 AC 1, HL

• Unlawful means are restricted to civil wrongs
• A uses unlawful means against a 3rd party to cause B harm
• A intends to harm B
• A’s actions cause B to suffer loss

Question 14

economic wrongs

Describe the requirements for unlawful means of conspiracy

Answer 14

1. There must be a combination of parties acting, at least one of which uses unlawful means against the pursuer.
2. The parties intend to cause economic loss to the pursuer via their actions.
3. The pursuer suffers loss

Question 15

economic wrongs

Describe inducing breach of contract

Answer 15

A induces breach of contract to B. B breaches contract with C. C can sue A for breach of contract.
If meets requirements:
1. “A” must have knowledge of the existence of the contract between “B” and “C.”
2. “A” must intentionally induce or persuade “B” to breach their contractual obligations to “C.”
3. “B” must indeed breach the contract with “C” as a result of “A’s” actions.

OBG v Allan [2008] 1 AC 1, HL

• Inducing breach of contract is an example of accessory liability- A is only liable if B breaches their contract with C because of A’s actions.

Question 16

economic wrongs

What are the requirements for inducing a breach of contract and the leading authority

Answer 16

1. There must be a breach of contract.
2. A must know that their acts will result in a breach of contract.
3. A must intend to induce the breach of contract.
4. A must in fact induce B to breach their contract.
5. A has a defence if the inducement of the breach is justified

Global Resources Group v McKay 2008 SLT 104

Question 17

economic wrongs

Describe ‘passing off’

Answer 17

When another business employs words/ marks/packaging/ etc that can be proved to be distinctive to an existing brand, confusing the consumer

Question 18

Fraud arises where a misrepresentation is made and:

Answer 18

1. A knows that their statement is false; or
2. Believes their statement to be false, and it turns out to be false.
3. The statement is a matter of importance to the parties, A is reckless as to whether the statement is false, and the statement is false.

Question 19

economic wrongs

Describe fraud

Answer 19

‘a machination or contrivance to deceive’- Erskine

Question 20

defences and remedies

Describe contributory negligence

Answer 20

Not a ‘complete defence’ – a partial defence

Law Reform (Contributory Negligence) Act 1945
S1(1) – Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of thefault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s chare in the responsibility for the damage

Question 21

What are the different forms of defences for nuisance

Answer 21

Volenti Non Fit Injuria

• Hinges on ‘consent’
• Knowingly and voluntarily accepted the risk or possibility of injury

Ex turpi causa non oritur actio

• No action can arise from an illegal act

Damnum Fatale

• ‘Act of God’
• Very rare, and so there is little modern authority

Necessity

• A defence available in cases of emergency

Res Judicata

• The issue has already been litigated between the same parties and has been determined by a competent court – necessary:
• Parties; subject matter; media concludendi

Question 22

Explain Defences – Volenti Non Fit Injuria

Answer 22

Hinges on ‘consent’

• Knowingly and voluntarily accepted the risk or possibility of injury
• Where might we see this come into effect?

Nettleship v Weston [1971] 2 QB 691

• “Knowledge of the risk of injury is not enough. Nor is a willingness to take the risk of injury. Nothing will suffice short of an agreement to waive any claim for negligence. The plaintiff must agree either expressedly or impliedly, to waive any claim for injury that may befall him due to the lack of reasonable care by the defendant, or more accurately, due to the failure ofthe defendant to measure up to the standard of care that the law requires of him”.

Question 23

Explain: defences - Ex turpi causa non oritur actio

Answer 23

No action can arise from an illegal act

Animals (Scotland) Act 1987, s4(2)

• There shall be no defence available under subsection (1) above to a person killing or causing injury to an animal where the killing or injury – (a) occurred at or near a place where the person was present for the purpose of engaging in a criminal activity; and (b) was in furtherance of that activity.

Pitts v Hunt [1991] 1 QB 24
Sloan v Triplett 1985 SLT 294

Question 24

Explain: defences - Damnum Fatale

Answer 24

• ‘Act of God’
• Very rare, and so there is little modern authority

Circumstances giving rise to the action must arise from natural causes, without human intervention, and must go beyond anything which is reasonably foreseeable or preventable

• Limited Scottish caselaw has concerned fires and floods – see Burns v Royal Hotel (St Andrews) Ltd 1958 SC 354

Caledonian Railway Co v Greenock Corporation 1917 SC (HL) 56

• Just because something is rare, does not mean it is a case of damnum fatale

Question 25

Explain: defences - necessity

Answer 25

A defence available in cases of emergency

Cope v Sharpe (No 2) [1912] 1 KB 496

• Sh, the owner of land, leased the shooting rights over the land to C, whose bailiff and head gamekeeper was the defendant. A fire broke out on the land, and while the plaintiff’s employees were trying to extinguish it, the defendant set fire to strips of heather between the fire and an area where there were nesting pheasants, the property of his master. The plaintiff brought an action of trespass against the defendant in the county court.
• Ultimately, the Court of Appeal reversed the decision of the Divisional Court, holding that the defendant was not entitled to judgment based on the jury’s findings.
• To be successful, there must be present what a reasonable person would regard as danger, and any action taken by the defender must be reasonable
• Key – greater injury would have resulted had the defender not acted as they did
• May be used to justify damage to property: Southport Corporation v Esso Petroleum Ltd [1953] 3 WLR 773
• Some other examples can be seen in medicine

Question 26

Explain: defences - Res Judicata

Answer 26

• The issue has already been litigated between the same parties and has been determined by a competent court – necessary:
• Parties; subject matter; media concludendi
• Why? Concern that if we allowed multiple judgments related to the same dispute, the ambit of suits would be increased and cause difficulties, especially if different judgments were laid down
• This defence is usually led when a claim is first brought in common law and later brought averring a breach of a statutory provision: Matuszczyk v National Coal Board 1955 SC 418

Question 27

Describe nuisance in Scots law

Answer 27

• said to be unitary - it is not divided into different categories
• not purely concerned with private interests but may be invoked for the protection of the neighbourhoods more generally

Question 28

damages

What are the two kinds of reparable losses in Scots law

Answer 28

• Non-patrimonial loss
• Patrimonial loss

Question 29

damages

Describe non-patrimonial loss

Answer 29

Can be regarded as invasions of the victims personality rights in the broadest sense.

Question 30

damages

Describe patrimonial loss

Answer 30

Patrimonial losses are the economic losses arising from the harm sustained by the victim. The losses derive from or are parasitic upon the harm that the victim has sustained and which was constitutive of the delict

Question 31

Possible remedies in nuisance

Answer 31

• Where there is an ongoing nuisance (more than tolerable, in context, etc.) an interdict is always available (but may be delayed).
• Where the nuisance is ongoing it may be less important to aver fault (it may ‘speak for itself’, res ipsa loquitor).
• Interdict is useful for ongoing issues, such as neighbourhood amenity. However where there has been loss or harm to property, interdict will only be useful if the problem will recur, and anyway will not compensate for the harm.
• Nuisance in the past was sometimes described as being of ‘strict’ (or ‘no fault’) liability, especially in English cases. (There might still be some possible defences, usually limited to damnum fatale, i.e. ‘acts of God’, or to acts of a 3rd party.)
• In Scotland where there is a claim for damages, there must be some element of fault or culpa