Common Law Nuisance and Rylands v Fletcher

Question 1

What is nuisance in the context of land?

Answer 1

An indirect tort of interference. The essence of nuisance is a condition or activity which unduly interferes with the use or enjoyment of land. (Clarke and Lindsell)

Question 2

What is private nuisance?

Answer 2

Private nuisance is concerned with interference to the land owned by private owners.

Question 3

What is public nuisance?

Answer 3

Public nuisance is concerned with interference with a class of persons (Horsey and Rackley, 2015). Something that materially affects the reasonable comfort and convenience of life of a class of Her Majesty’s subjects.

Question 4

What is a class of people?

Answer 4

The test is whether:
If the nuisance is so widespread in its range,
so indiscriminate in its effect
that it effects the community at large. A good cross section but more than an individual or a family.

Question 5

Give some examples of public nuisance.

Answer 5

Carrying on an offensive trade or selling food unfit for human consumption. These are also crimes as well as torts. R v SWW (Aluminium sulphate contamination)

Question 6

Defences to public nuisance.

Answer 6

Statutory authority.
Contributory negligence.
Prescription.
Consent.

Question 7

How is private nuisance viewed?

Answer 7

Private nuisance is viewed as a minor tort: “Any unlawful interference with a person’s use or enjoyment of land or some right over it” (Winfield, 1931).

In private nuisance, the acts complained of need not be unlawful. It is normally caused by a person doing something lawful on his own land.

Question 8

In which case was it held: that any action causing a “material injury to property” is always a nuisance; conversely, an act causing “personal discomfort” will not necessarily be a nuisance?

Answer 8

St Helen’s Smelting Co v Tipping (1865)

The defendant owned a copper smelting works. Various poisonous vapours would exude from these works and caused damage to the claimant’s shrubs. The defendant argued that, given the activities of other local smelting companies, there was no nuisance.

Question 9

Name a case that illustrates that a person can be liable for a nuisance that was created by a third party if the person knew about it but continued to allow it.

Answer 9

Sedleigh-Denfield v O’Callaghan.
The defendants knew about the pipe but kept using it, and by doing so, they had adopted and continued the nuisance which was created by the local authority. A landowner who is aware of a danger but keeps allowing it is liable for the consequence of that danger despite the fact that he did not create the danger in the first place.

Question 10

Even if activity performed on one’s land is necessary or for the public benefit, one cannot infringe on the rights of another individual. If one does, they must compensate the other for damages. Case?

Answer 10

Bamford v Turnley: The court reversed the lower court’s ruling, stating that a Defendant’s use of land, even if private and for beneficial use, is not justification for the infringement on his neighbor’s rights.

Question 11

Who can sue in nuisance?

Answer 11

Must have locus standi (grounds). Malone v Laskey (1907)

Substantial link. Hunter v Canary Wharf

Question 12

What is a “reasonable user”?

Answer 12

Dependent on intensity, locality and, potentially, claimant sensitivity.

Question 13

“What would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey”. This case is?

Answer 13

Sturges v Bridgman (1879). A locality issue.

Question 14

Name an example of statutory authority as a defence.

Answer 14

Manchester Corporation v Farnworth (1930) When Parliament has authorized a certain thing to be made or done in a certain place, there can be no action for nuisance caused by the making or doing of that thing if the nuisance is the inevitable result of the making or doing so authorized.
However in Barr v Biffa (2012)
the Court of Appeal reapplied the traditional approach, finding that it was not a defence to a nuisance claim to show that the activities causing the nuisance, in this case odour, were authorised by the operating permit.

The Court made it clear that when considering private nuisance claims there is no absolute standard and it is a question of degree whether the interference is sufficiently serious to constitute a nuisance.

Question 15

What is a prescriptive right defence?

Answer 15

If a right has been exercised: without force; without secrecy; and without permission for at least 20 years it may have been acquired as a legal right (an easement) (Prescription Act 1832).

Question 16

Must there be damage in nuisance?

Answer 16

Normally. Loss of amenity is difficult to claim under the tort of nuisance.

Question 17

What are the remedies in nuisance?

Answer 17

Normally an injunction. Can be damages. Abatement is allowable.

Question 18

What is Rylands and Fletcher?

Answer 18

Rylands had commissioned a reservoir on his land. In building the reservoir, workmen discovered a mine below the surface. Rather than reinforce the mines the workmen continued work.

When the reservoir was filled, water flooded into the mines below and flooded neighbouring mines belonging to Fletcher. Fletcher brought a claim against Rylands.

Question 19

Is this a claim in nuisance?

Answer 19

it is not an ongoing interference, normally an isolated event. It is seen today as a subcategory of nuisance. It is strict liability.

Question 20

What is strict liability?

Answer 20

In tort law, strict liability is the imposition of liability on a party without a finding of fault (such as negligence or tortious intent). The claimant need only prove that the tort occurred and that the defendant was responsible.

Question 21

What are the elements of Rylands v Fletcher?

Answer 21

The defendant must bring onto his land, for his own purposes something that could do mischief. It must be an unnatural use of the land, the thing must escape and causes damage. it must be foreseeable that if this mischief escaped it would cause damage.

Question 22

What is likely to do mischief?

Answer 22

Water in the case of Rylands, although that might be more related to unnatural use. Not a pipe carrying water in Transco v Stockport.

Question 23

What does escape mean?

Answer 23

The mischief must escape from one tenement to another. Read v Lyons (explosives). Stannard v Gore (tyres).

Question 24

What represents non-natural?

Answer 24

In Giles v Walker, it was held that there was no liability under the rule in respect of trees, shrubs and other plants that are naturally found on the defendant’s land, even if part of these do escape to the claimant’s land.

Question 25

What does foreseeable mean?

Answer 25

Liability under Rylands for escape of materials from land is dependent upon proof of the foreseeability of damage of the relevant type. Eastern Counties Leather were not liable as the damage was too remote. It was not reasonably foreseeable that the spillages would result in the closing of the borehole. Cambridge Water v Eastern Counties Leather.

Question 26

What is the Wagon Mound test?

Answer 26

Following the Wagon Mound no 1 the test for remoteness of damage is that damage must be of a kind which was foreseeable.

Question 27

What is the relevance to the built environment?

Answer 27

Imposing liability for the escape of anything likely to cause mischief gives and extra dimension of consideration for construction professionals.

Question 28

Name a defence involving the fault of the claimant.

Answer 28

Dunn v Birmingham Canal (Dunn worked a mine under a canal).

Question 29

Name a defence involving the act of a third party.

Answer 29

Box v Jubb (reservoir to reservoir).

Question 30

Name a defence involving an act of god.

Answer 30

Carstairs v Taylor. (rat gnawed a hole)

Question 31

Name a defence involving a statutory authority.

Answer 31

Smeaton v Ilford (sewage).

Question 32

Name a defence involving mutual consent.

Answer 32

Peters v Prince of Wales (sprinklers).