Week 1- Private and Public nuisance (Rylands v Fletcher) Flashcards Preview

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Flashcards in Week 1- Private and Public nuisance (Rylands v Fletcher) Deck (48)
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What are the 3 types of private nuisance as recognised in Hunter v Canary Wharf??

Hunter v Canary wharf 1997 AC 655
1) Nuisance by encroachment on a neighbour’s land
2) Nuisance by direct physical injury to a neighbour’s land
3) Nuisance by interference with a neighbour’s quiet enjoyment of his land


What does Lord Goff recognise as an imperative element of the rule in Rylands liability specifically?

Foresight: Lord Goff introduced the requirement that D foresaw that he had “done something which he recognised, or judged by the standards appropriate at the relevant time of place, or ought reasonably to have recognised, as giving rise to an exceptionally high risk of danger or mischief if there should be an escape, however unlikely an escape may have been thought to be”, reasserting the rules in Rylands v Fletcher.


What are the 8 criteria for private nuisance in problem questions?

1) Recognise the TYPE of private nuisance- (physical damage or loss of amenity usually)
2) Who can sue? (interest in land/ exclusive possession)
3) Who can be sued? Nuisance creator, including tenant where he expressly authorises nuisance, or virtually certain nuisance with implied authorisation. Also includes he who adopts or continues the nuisance.
4) Reasonable user enquiry (amenity interference only) factors which affect the reasonableness of the interference eg timing, level, locality etc.
5) Sensitivity- sensitivity may affect the level of damages payable but will not suffice for nuisance if the normal person would not complain of nuisance.
6) foresight/ remoteness- D would have to foresee or ought to have foreseen the link between their conduct and the loss suffered by the claimant- objective test
7) Defences- (prescription, statutory authority, coming to nuisance(not a defence, as reiterated in Coventry v Lawrence, unless P changes the use of their land after the nuisance has commenced))
8) Appropriate remedy (derived from type of nuisance suffered eg damage or amenity)- remedy could be abatement, injunction, damages- must reflect past and future damages (only consequential economic loss or damage recoverable)


Facts and significance of St Helens Smelting v Tipping?
(Lord Westbury)

Facts- Tipping purchased an estate of great value in a place known to be local to smelting works, with the price of the property said to reflect this. He suffered physical damage to his property as a result (crops, trees, foliage)

Significance- Tipping was successful in his claim-
Difference struck between amenity loss and physical damage.
-Lord Westbury- "it is a very desirable thing to mark the difference between an action brought for a nuisance upon the ground that the alleged nuisance produces material injury to the property, and an action brought for a nuisance on the ground that the thing alleged to be a nuisance is productive of sensible personal discomfort"
-The latter may lead to a reasonable user enquiry and whether or not the plaintiff should be expected to subject himself to a nuisance, with regards to the
reasonableness of the nuisance created (sometimes known as locality rule). Not applicable to physical damage claims as always unreasonable, even if undertaken with due care and reasonable practices.
-Also no defence that plaintiff came to the nuisance with full knowledge of the smelting works


What is the rule regarding locality and reasonable user for different types of private nuisance?

Two types of private nuisance are physical damage to land and amenity interference:
-Locality looks at the local area around the land, and combined with reasonable user, will evaluate the extent to which the nuisance is a reasonable use of land with which D cannot be liable for the amenity loss to neighbouring land, on account of being a reasonable use of land.
-Give and take dictates that an occupier may be expected to put up with an inconvenience because the nuisance-creator is acting as a reasonable user; only if they are carrying out works unreasonably may there be a claim in private nuisance. Some operations will be deemed unreasonable no matter how they are carried out.
-It is irrelevant to physical damage to property because this can never be considered a reasonable use of land.


How does reasonable user differ to reasonable conduct?

“Reasonable user is not the same as reasonable conduct, since some activities in some places are destined to be judged unreasonable no matter how carefully they are carried out. On the other hand, the idea of ‘give and take’ means that some activities are protected unless they are carried on without due regard for one’s neighbours"


What does private nuisance claim to protect?

The ordinary use and enjoyment of land


How does the criteria of sensitivity operate, and how should it be distinguished into two different ways of operating?

As J Luxmoore puts it, there is no protection for “elegant or dainty modes and habits of living”, which can be considered sensitivity in its normal understanding.

-Where there is nuisance amounting to physical damage, the same rule seems to apply. The fact that the defendant has exercised reasonable use of property which has caused damage to the sensitive and eccentric use of the premise by the plaintiff will not amount to an action.
-This must be distinguished from the fact that the claimants sensitivity bears an impact only on the value of his damaged property, rather than sensitivity regarding the susceptibility to damage (where it isn’t relevant); only if an action succeeded would this be relevant, because the damages payable by the defendant would be that of the increasingly expensive property eg where flowers were damaged by a factories fumes which happened to be expensive orchids; the fact they were these expensive orchids rather than daisies is only relevant to the damage payable. The flowers would be damaged by the fumes regardless of the type of flower.


Facts and significance of Bradford corporation v Pickles?
(the effect of malice and motive)

Facts- The plaintiffs supplied water to Bradford, some of it from a spring on land owned by Pickles. Pickles began work on his land which diverted water from its natural route (which flowed from Pickles land to the spring used by BC). Plaintiffs claimed this was done with malice to deprive them of water.

Significance- The HL resolved the issue by rejecting the injunction, on the basis that neither party had any proprietary right to the water, as it was an underground channel. Instead, Pickles had the right to divert or appropriate the water, as it ran beneath his own land first, before reaching the spring, and BC could not prevent this. The malice in question also was decided not to be relevant to the case, no matter Pickles motive for messing with the water flow.
-In the words of Lord Halsbury, Pickles “did something maliciously which he was entitled to do”.


Coventry v Lawrence 2014 UKSC facts and significance:
(planning permission)

Facts- Claimants bought a house near a motorsport stadium, the noise from which was permitted by planning permission (by the council). The claimants complained about the noise generated, and noise reduction works were instructed for the defendants. Despite the imposition of these works, the claimants continued with a claim for nuisance for loss of amenity.

Significance- SC held that planning permission would not afford a defence for the defendants, who also argued that they gained the right to cause the nuisance by a 20 year prescription, however only 16 years had elapsed. It is mostly irrelevant because they lacked the protection of this defence; however it must be distinguished, in that the nuisance must have been around for 20 Years, not simply that the activities relevant to the nuisance have been carried out for 20 years.
- The importance of the activities which create the nuisance may be sufficient in deciding what damages should be available; an injunction for noise may not be the most beneficial as it may adversely effect the public interest eg the entertainment of the motorsports or the jobs created by the entity.
-Again, coming to the nuisance is no defence, as by the time that the plaintiffs came to the noise, the motorsport stadium had not gained a right by prescription. There was no change in the use of their land, rather they bought and occupied the house int he same way that anyone else would.


Who can be sued in a claim for nuisance? simple and not so simple examples.

-The creator of the nuisance is the simplest example of who can be sued.
-A property occupier who adopts a nuisance from a previous owner, created a positive duty on the owner to cease the nuisance. The extent of the duty is that the owner should take "reasonable steps to mitigate the effect of the nuisance."
-Also includes landlords who expressly authorise a nuisance, or landlords offering a license and live there and foresee that their tenants create a nuisance, as in Cocking v Eacott


Sedleigh-Denfield v O'Callagha 1940 Ac 880 facts and significance:
(What does continuing and adopting of a nuisance entail?)

Facts- A pipe was laid on the defendant’s land without their knowledge or consent, by a trespasser. The occupiers became aware of the pipe’s existence, and it was used to drain their field. A grating placed on the pipe failed to prevent it from flooding, and subsequently got blocked and overflowed onto the claimant’s land.
-The grating was placed in the wrong place which led to the blockage and subsequent flooding.

Significance- The new land occupiers had both adopted the nuisance and continued its effects; either was ground for liability, even if they had not themselves laid the pipe. They were sufficiently connected to its adverse effects and had chosen not to mitigate its effects or cease the nuisance.
- “Continues” defined by Viscount Maugham as “with knowledge or presumed knowledge of its existence. He failed to take any reasonable means to bring it to an end though with ample time to do so.” He “adopts” it if he makes any use of the erection, building, bank, or artificial contrivance which constitutes the nuisance” (adopts therefore more severe than continues, but either suffices)
-No defence of act of a third party because they subjectively created the nuisance by wrongly fitting the grate, even though the pipe was not laid by them.


Who can be sued in private nuisance? Importance of the Burrow Mump (Leakey and others v national trust)
-What is the duty when a natural phenomenon causes a nuisance to neighbouring land?

Natural weathering caused damage to neighbouring land, due to the collapse of a large mound of land on the defendants land, which damaged the neighbouring land.
-“A defendant is liable for a naturally occurring hazard on the land if they are aware of the danger and failed to act with reasonable prudence to remove the hazard.”
-The defendants had a positive duty to a neighbour when their land, through natural phenomenon, created a nuisance on his neighbour’s land, and there was a ‘measured duty of care’ to deal with the nuisance, as much as they could reasonably be expected to do so.
-Also added that the positive duty was subjective/ measured, in that they could only do as much as they were reasonably expected to do under this positive duty, with regards to the circumstances and resources available to the defendant, as well as the foreseeability of the risk which could be ascertained with the resources available to the defendant.


How can landlords, tenants and licensees be liable for nuisance and what is the difference between a tenancy and a license?

A landlord can be liable for a nuisance created by a tenant only if he has authorised that nuisance: “A landlord cannot be liable for an action for authorising his tenant to do something that would not be actionable if he did it himself”.
-The fact a landlord fails to stop or discourage a nuisance does not make him liable, unless they have previously authorised such nuisance

A landlord offering a tenancy no longer occupiers nor controls the property, whilst a landlord offering a license gives the licensee use of the property but remains in control and possibly occupation.


Cocking v Eacott 2016 EWCA Civ 140 facts and significance-
Liability of landlords in a tenancy

-“A landlord who has granted a tenancy is not in general liable in nuisance if his tenant commits that tort.” due to the fact that they have not participated nor contributed to that nuisance, and no longer occupy the property.
-Conversely, in a license where the licensor continues to occupy and control the property, they may be liable for a nuisance emanating from their property due to the control which they have over the property.

Facts-The dogs persistent barking caused a nuisance to the neighbours, and the licensor continued to occupy the residence when she let her daughter (and daughters dog) occupy the property as well.

Significance- the licensee is liable even when she does not directly cause the nuisance, because she continues to occupy the property from which the nuisance derives, and she allowed the dog to occupy with her. She was equally as liable as her daughter, who only had a bare license to the property. ON the proper construction of the facts the defendant licensor still occupied the property and was liable as such.


Who can sue in private nuisance according to Hunter v Canary Wharf, and how does it differ to public nuisance?

-In answering this question, we are answering the question of who’s interests can be sufficiently protected. Hunter v Canary Wharf has confirmed the proposition that nuisance is a tort committed against property rather than against a person, whilst in public nuisance, there is a wider protection of interests which can extend to “special damages”; a form of personal injury.
-Therefore property owners are the ones capable of suing due to the type of tort which private nuisance is.


What were the lords almost unanimous about with regards to what private nuisance is committed against?
-How does Lord Hoffmans example prove this in Hunter v Canary Wharf?

The tort is committed against land rather than against the person.

-Hoffmann seems to suggest that more substantial damages should be awarded eg for noise nuisance where there is a family or a single person who occupies a very valuable property, compared to a similar or larger family living in an ordinary dwelling; it is related to the value of the land rather than the accumulative discomfort suffered by all residents because of the number of residents residing in the property


What is an abatement?

-A form of self-help, used in very limited and exceptional circumstances where there is a very low amount of work required to remove a nuisance eg an overhanging branch


What is an injunction?

An injunction is a court order to cease or decrease the extent of a nuisance. The court can exercise some discretion, between a complete prohibition, to setting time limits on the creation of a nuisance, with regards to the public interest as well as the interests of third parties, dealt with on a case-specific level.


What are damages and what damages are payable? What can be claimed (for amenity loss) and what can be compensated for, following Shelfer v city of London electric co (4 criteria for future damages)- recently disputed in Coventry v Lawrence?

-Some nuisances are confined to past damage or interference and are not perpetuating; even with continuing nuisance damages which are often awarded as well.
-Hoffmann suggests that “the sums awarded in cases of amenity nuisance must reflect the diminution of amenity value in the property affected, even if temporary.”
-Damages may also be awarded in the anticipation of future damages, in place of an injunction, with the following criteria originally being cited as authoritative following Shelfer v city of London electric lighting co:
1)If the injury is small 2) And is one which is capable of being estimated in money 3) and is one which can adequately be compensated by a small money payment 4) and the case is one I n which it would be oppressive to the defendant to grant an injunction then damages rather than injunction may be appropriate


How is a private nuisance defined?

An unreasonable interference with the use and enjoyment of land or with some right over, or in connection with it.


What is a public nuisance and what 3 categories has it been split into?

“A person is guilty of a public nuisance (also known as common nuisance), who (a) does an act not warranted by law, or (b) omits to discharge a legal duty, if the effect of the act or omission is to endanger the life, health, property, or comfort of the public, or to obstruct the public in the exercise or enjoyment of rights common to all her Majesty’s subjects.”

1) Amalgamated public nuisance
2) Nuisance affecting a sufficient class of people, actionable by individuals suffering "special and substantial damage"
3) Cases relating to the highway


What are amalgamated public nuisances?

Made up of a series of private nuisances with a sufficient number of claimants all suffering relevant nuisance, to an extent that it can be considered a public nuisance because they are indiscriminate in their effect on the community.


AG v PYA quarries 1957 facts and significance (Public nuisance)

Facts- The defendants operated a quarry and used a blasting technique which emitted large quantities of dust and noise, as well as causing vibrations which interfered with the enjoyment of land for many individuals in the area. The claimants sought an injunction preventing the continuation of a public nuisance as a result. The defendant’s alleged that what was being carried out was in fact a private nuisance which affected only those in the area and that they were therefore not bound by the injunction prohibiting ‘public nuisance’ as a result.”

Significance- “In other words, a normal and legitimate way of proving a public nuisance is to prove a sufficiently large collection of private nuisances.” (Romer LJ)
-The injunction granted for public nuisance was successful, and that the definition of “public” with regards to this form of public nuisance was as follows. “Any nuisance is public which materially affects the reasonable comfort and convenience of life of a class of her majesties subjects. The sphere of the nuisance may be described generally as “the neighbourhood”.


What is the public nuisance of individuals suffering special damages concerned with? What are the constituent elements of it?

-“A public nuisance which affects the comfort or convenience of sufficient class may also be actionable by an individual seeking damages.”

Special damage must be ‘particular, direct and substantial’, which encompasses a broad range of actionable damages, including pure financial loss.


How is public nuisance separate from private nuisance following Corby group litigation v Corby BC

Facts- Claimants born with deformed upper limbs and blame Corby council for their reclamation of a large area of contaminated land which has been acquired from BSC. The defendants claimed it had been settled that personal injury had no place in a claim of nuisance, and in this case would rest on the assumption that public nuisance was not separate from private nuisance, both of which protected property rather than personal interests. The long-standing principle that personal injury were sufficient grounds for a claim of public nuisance was challenged.

Significance- The academic opinion of Professor Newark that there is no room for personal injury in a claim of nuisance was not binding law, even where the House of Lords accepted his academic argument. Personal injury was actionable under public nuisance, even if not under private nuisance, and the defendant’s appeals were dismissed, despite their argument.
-The right protected under public nuisance of this kind is “the right not to be adversely affected by an unlawful act or omission whose effect is to endanger the life, safety, health etc of the public.

Public nuisance has therefore been given binding and authoritative treatment as a tort separate from private nuisance, protecting a different nature of interests, in that the protected interests personal (injury) rather than proprietary (damage)


problem question checklist for Public nuisance (5 steps)

1) Explain what a public nuisance is: it could be unreasonable interference with a public right eg a right of way, OR it could be unreasonable interference with the health, comfort, safety and or convenience of the public. (remember that public nuisance is a criminal offence)
2) Who can sue? “Her majesty’s subjects” but must be a PUBLIC problem, in that in its nature the nuisance is affecting the public, sometimes described as “indiscriminate” rather than a singular person (which would be discriminate)
3) Who can be sued? The person/ company from which the nuisance derives from
4) What is the claim for? Most often this is “special and substantial damage”; this differs from private nuisance because the interests which are protected are wider, to include personal injury, as well as damage to property (which might fall under amalgamated The damage must be “special” in that it is not a normal or expected side effect of the nuisance but is sufficiently bad.
5) Remedies available- damages for health expenses are the most obvious example. Damages in lieu of an injunction often used because it may have adverse socio-economic problems if an injunction was granted. Damages often have to reflect the lost opportunity for the injunction, on top of medical expenses etc.


Which of the two types of nuisance is Rylands liability and why?

IT is an example of private nuisance because it derives from damage to property/ land rather than personal injury.


What is the basic rule derived from Rylands and fletcher?
4 requirements?

1) A person brings something on his land and collects and keeps it there
2) This is done for his or her own purposes; no longer imperative.
3) The thing in question is likely to do mischief if it escapes
4) The damages done is a natural consequence of the escape


Why is Rylands liability not just another form of negligence and therefore why does negligence not need to be established?

No negligence needs to be established and as Rylands liability is merely a form of private nuisance, D may be liable despite showing the utmost care.
- The utmost care may be shown, but the risk of damage which derives from the non-natural use of land and simultaneous accumulation of 'something likely to do mischief if it escapes' accounts for the fault elements of the tort, in the absence of negligence.
-Following transco, it is the risk rather than the eventual damage/ escape which must be foreseen.