Nuisance Flashcards
Nuisance is an umbrella term for 3 torts. What are they?
1) Private nuisance
2) Rylands v Fletcher
3) Public nuisance
What is the definition of private nuisance?
Unlawful interference with a person’s use or enjoyment of land
What are the 3 types of interference under private nuisance?
1) Encroachment (overhanging tree/roots growing)
2) Physical damage (tiles falling off one roof and damaging C’s Conservatory)
3) Interference with quiet enjoyment or personal comfort
- Must materially interfere with ordinary comfort; interrupted TV reception insufficient for instance
What is meant by ‘unlawful’ interference for private nuisance?
Substantial and unreasonable interference
- We must consider whether D’s use of land unreasonably interfered with C’s reasonable use of their land?
Encroachment is always unlawful
Physical damage is unlawful unless it is trivial
Various factors are used when balancing C and D’s right to use land as they wish.
What factors are relevant to determining if there is an ‘unlawful’ interference?
1) Duration and frequency – longer the length of time the interference goes on and frequency of it will suggest it is unreasonable
- One off event is unlikely to suffice
2) Excessive conduct of D – measured objectively
- How loud the noise is
- How smelly the smells are
3) Extent of harm of C – measured subjectively
- C not living there would find it more difficult to prove
- If C is hyper-sensitive to something others would ignore, it won’t be a substantial and unreasonable interference - Abnormal sensitivity is ignored
4) Locality is relevant
- Person living in London would be expected to put up with more noise, than someone living in a rural village
5) Public benefit
- Smelly fish and chip shop might be considered when deciding whether to grant an injunction
6) Malice
- If something is deliberately trying to frustrate C’s enjoyment, a harsher view will be taken of the conduct of D
Who can sue for private nuisance?
C must have an exclusive right of possession
- Usually means they have a land interest
- Owners and tenants are most common claimants
Who can be liable for private nuisance?
1) Original creator – always liable even if now not-resident
2) Occupier – may be liable even if they aren’t the creator
(i) Can be liable for independent contractors and their noise when D hires them
(ii) Can be liable for nuisances of employees acting in course of employment
(iii) Can be liable for nuisance created by visitor or trespasser, provided:
- Occupier has adopted or continued the nuisance
- (a) Adopt – make use of thing constituting the nuisance
- (b) Continue – know or ought reasonably to know of its existence and fail to take reasonable steps to end the nuisance
3) Landlord – may be liable if they have authorised the nuisance, through a clause in lease for example
What damage can the claimant claim for?
C must prove they have suffered damage
- Physical damage to land or buildings
- Personal injury and personal property cannot be claimed for as private nuisance protects land interest
- Interference with quiet enjoyment of land = damage
How is causation assessed for private nuisance?
Rules are the same as negligence
- Factual causation, intervening acts + remoteness etc
- D liable for consequential losses - For example, where a nuisance prevents a business from operating properly, they can liable for loss of profits
What defences are applicable for private nuisance?
1) Consent and contributory negligence still apply
2) Defence of prescription – continuing nuisance for 20 years against particular claimant
3) Defence of statutory authority – if permitted to construct something by statute
4) Defence of necessity – very rare; two elements:
- a situation of necessity exists because of an imminent danger to life and limb (or, in very limited circumstances, a threat to property); and
- that the defendant’s actions were reasonable in all the circumstances
What will not work as a defence for private nuisance?
1) No defence of ‘coming to the nuisance’ - saying you were creating it before C arrived next door for example
2) Mere granting of planning permission does not legitimise a nuisance
What remedies may be granted for a successful private nuisance claim?
Damages (maybe in lieu of an injunction)
Injunction
- Public benefit of nuisance may be considered
- Prohibitory injunction – stop D acting in a certain way
- Mandatory injunction – D ordered to take some positive action
Abatement – self-help (cutting branches encroaching on C’s land)
What are the elements of the tort of Rylands v Fletcher?
R v F doesn’t cover personal injury claims either
Elements:
1) D brings onto their land something with exceptional risk of causing damage if it escapes (industrial oil as an example)
- Need not be dangerous itself, but capable of causing damage if it escapes
- Water, cattle, sewage, electricity would all suffice
2) It escapes – one-off escape is enough
- Item causing damage must actually move from D’s premises to C’s
3) D’s use of land is ‘non-natural’ - use must be extraordinary and unusual
4) It causes foreseeable damage of a foreseeable type – oil spill could cause financial loss
What defences apply to the tort of Rylands v Fletcher?
1) Consent and contributory negligence can apply
2) Statutory authority – if Parliament has authorised this kind of nuisance, that would be a defence
3) Escape by an Act of God which could not have been reasonably foreseen
4) Escape caused by the unforeseeable act of a stranger
What is public nuisance? What are the required elements?
Crime protecting public rights
Tort elements
1) Conduct materially affecting a ‘class of his majesty’s subjects’
- Doesn’t have to be all the public, but whether it is a class, is decided on the facts
2) C suffers particular harm
- They must suffer over and above the rest
- They could suffer extra property damage or personal injury
