THE TORT OF NUISANCE

NUISANCE A tort of nuisance generally concerns behavior which interferes with or damages the comfort or safety of others.There are three types of nuisance: Private nuisance Public nuisance Statutory nuisance  

PRIVATE NUISANCE A tort of causing an unlawful interference with a person's use and enjoyment of land. The claimant must have an interest in the land which is a subject to interference. For a claim to stand the claimant has to prove: An indirect interference with the enjoyment of the land, Damage to the claimant, The interference was unlawful and unreasonable

Interference The interference may be continuous or recurrent. Temporary interference is unlikely to be actionable unless particularly serious A single event will only be actionable if it is attributable to the underlying nature of the defendants land or state of affairs on it. Interference may apply to a right in land such as private rights of way, or a right to a light . e.g.smoke, smells, the branches of trees, gas, heat, noise, vibrations, etc.

Damage There can be physical damage to the claimants land St Helens Smelting Co Ltd v Tipping Trees damaged by fumes Or non physical damage Thompson Schwab v Costaki

Unreasonable interference In deciding whether the interference is unreasonable the courts will take into consideration following factors: Extent of the harm Abnormal sensitivity of the claimant or his property Robinson v Kilvert (no nuisance due to the sensitivity of the brown paper) Contrast with Mc Kinnon Industries v Walker (as the general right of enjoyment was affected by fumes and gas, more sensitive activities can be protected as well)

The nature of the locality St.Helen Smelting v Tipping (the claimants should put up with the level of discomfort common to the area in which they are situated unless the actual injury to the property occurs) Sturges v Bridgeman (what is reasonable in one area may be unreasonable in another) Duration The longer the interference goes on the more likely it is to be considered unreasonable.

Malice Christie v Davie (Malicious behavior rendered defendants conduct unreasonable) Hollywood Silver Fox Farm Ltd v Emmett (frightened the foxes out of malice) Public utility Modern cases suggest the relevance of this factor. Miller v Jackson (usefulness of the cricket club to the local community outweighs the claimants interest)

Per Geoffrey Lane : “a balance has to be struck between on one hand the rights of individual to enjoy his house and garden without threat of damage and on the other hand the rights of the public in general or a neighbour to engage in lawful pastimes” Nuisance is a tort of strict liability I.e the defendant will be liable regardless of whether he or she knows they have created a nuisance.

Who can be sued? The creator of the nuisance Anyone who creates a nuisance by an act can be sued for nuisance, regardless of whether that person occupies or owns the land from which the nuisance originates. The occupier even if he did not create the nuisance but The nuisance was caused by an employee or independent contractors the nuisance was created by a previous occupier or a visitor to a property provided the occupier knew or ought have known of the existence of the nuisance.

Who can be sued? 3. The nuisance was created by a trespasser or produced by natural events if the occupier adopts the nuisance (makes use of it) or fails to take reasonable steps to abate it. Sedleigh Denfield v O’Callaghan (trespasser erects defective drainage system which becomes blocked ) Leaky v National Trust (defendants knew of a naturally occurring landslide and did nothing to prevent it or rectify the damage)

Who can be sued? The owner of the land, occupied by the tenant, provided: The landlord has expressly or impliedly authorised the nuisance I.e. it is a natural result of the letting Tetley v Chitty (the go kart club creating the nuisance was an ordinary result of its running) The landlord knew or ought have known about the nuisance at the time of letting The nuisance results from a breach by the landlord of a covenant to repair.

Who can sue? Traditional view: only those people who have a proprietary or other interest to the land. Modern view: any occupier

Defences Prescription Statutory authority Sturges v Bridgeman It applies where it can be shown that that the nuisance was actionable for more than 20 years to the actual claimant. Sturges v Bridgeman Statutory authority Where a statute orders something to be done and it inevitably create nuisance. Allen v Gulf Oil Refining ( oil refinery created under the statute was sued for nuisance)

Consent Interference due to sensitivity Accidental start of the fire

Public Nuisance It is the nuisance that materially affects the reasonable comfort and convenience of the public or a section of the public I.e. unreasonable interference with the public's rights. E.g. obstruction of the highway or causing disruption through a badly organised public event. Public nuisance is primarily a criminal offence and so is prosecuted by the state, but a private individual who has suffered special damage as a result of such nuisance may bring an action in tort.

The nuisance must affect a sufficient section of the public to be actionable as a public nuisance If an individual is unable to prove special damage but the nuisance still affects a sufficient section of the public the Attorney General may bring the action on behalf of the public

Remedies Injunction is the main remedy for nuisance, and it aims to make the defendant stop the activity which is causing the nuisance. An injunction may be perpetual which orders the activity to stop completely or it may simply limit the times at which it can be done.

Damages can be recovered for damage to the claimants land or the enjoyment of it, and also for injury to the claimant which is associated with a loss of enjoyment such as loss of sleep, or discomfort caused by noise or smells. Personal injuries have to be connected to the damage to the land to be recovered

Abatement involves self help and allows claimant to take steps to end the nuisance. Where a claimant has to enter the defendants land for this purpose, a notice must be given.

Private nuisance Public nuisance Claimant must have interest in land to claim Must prove damage to land or enjoyment of land Defence of prescription is available Mostly personal injury damages are not recoverable No such interest is needed Need to prove special damage and belonging to a class of people Contributory negligence defence is available Personal injury damages are recoverable