Breach of Statutory Duty Tort Law PDF

9 Breach of Statutory Duty LEARNING OUTCOMES When you have completed this chapter, you should be able to: explain the factors to be considered when determining whether or not a particular statutory duty gives rise to a civil claim; explain all o...

9 Breach of Statutory Duty LEARNING OUTCOMES When you have completed this chapter, you should be able to: explain the factors to be considered when determining whether or not a particular statutory duty gives rise to a civil claim; explain all of the elements which a claimant needs to prove to establish a claim in breach of statutory duty. 9.1 Introduction There are numerous statutes and statutory regulations which impose obligations on people either to do or refrain from doing various things. Many impose criminal penalties (eg fines) for a breach. Some impose civil liability. What we will be considering in this chapter is when a court will conclude that a statute (or regulations made under a statute) should give rise to a civil claim by someone who has been injured by another’s failure to comply with that statutory duty. You should note that the remainder of this chapter talks about duties from ‘statute’, but all points apply equally to duties deriving from statutory regulations (secondary legislation). In Chapter 6 on employers’ liability, you noted changes made to employers’ civil liability in relation to breaches of statutory health and safety regulations. You saw that s 69 of the Enterprise and Regulatory Reform Act 2013 (ERRA 2013) amended s 47 of the Health and Safety at Work etc Act 1974 (HSWA 1974) so that breaches of health and safety regulations made under the HSWA 1974 no longer give rise to a civil claim for breach of statutory duty. Prior to this amendment, breaches of such regulations could give rise to a civil claim. It is important to bear this in mind because when you study the tort of breach of statutory duty, you will see that many of the cases which establish key principles in the tort of breach of statutory duty arose in the context of workplace accidents caused by alleged breaches of health and safety regulations. Those cases remain relevant for the principles they establish, despite the fact that the particular statutory regulations referred to would no longer give rise to a civil claim. Do keep this in mind as you read the cases mentioned. The next section will provide you with an example of a successful claim for breach of statutory duty. 195 Tort In Curtis v Betts and Another 1 WLR 459 the claimant made his claim under s 2 of the Animals Act 1971 that imposes liability for damage done by dangerous animals. The claim was successful. The court found that the defendants were not at fault in failing to control their dog. Nevertheless, the claimant was successful in his claim for breach of statutory duty because liability under the statute was strict. 9.2 Is the breach actionable in tort? Not all statutes give rise to a civil claim if breached. Therefore, the first issue to be considered is whether the relevant statute allows a civil claim. The court will look first at the wording of the particular statute in order to decide whether a claim in tort will lie for breach of a particular statute. The courts will read the statute to see if it expressly states whether a claim will or will not lie in tort in the event of the statutory duty being breached. Many modern statutes make it clear what Parliament’s intention was. The following section shows examples of some statutes which clearly state whether or not breaches of their provisions give rise to a claim in tort. Examples Consumer Protection Act 1987 Section 2: Liability for defective products: ‘(1) Subject to the following provisions of this Part, where any damage is caused wholly or partly by a defect in a product, every person to whom subsection (2) below applies shall be liable for the damage.’ Guard Dogs Act 1975 Section 5: Offences, penalties and civil liability: ‘(2) The provisions of this Act shall not be construed as (a) conferring a right of action in any civil proceedings …’ Safety of Sports Grounds Act 1975 Section 13: Civil liability: ‘… the provisions of this Act shall not be construed as (a) conferring a right of action in any civil proceedings …’ The statutes above illustrate that often the statute itself will state whether or not a breach of its provisions is actionable in tort. However, if the statute contains no clear indication, the court will look next to case law. Often there may be existing case law on the issue of civil liability for a breach of the statute in question, ie a court in the past is likely to have been asked to decide this issue. If so, then such a case will act as a precedent for future situations under the same statute. If the statute itself is silent on the issue of whether a civil claim will lie and there is no previous case law, then the court needs to endeavour to ascertain what Parliament’s intention was in passing the statute in question. To do this the court will take into account a number of factors. None of these factors is conclusive. We now move on to consider what they are. 9.2.1 Whether the statutory duty protects a limited class of persons One of the most important factors is whether the relevant statute was designed to protect a limited class of people (eg factory workers) rather than the public generally. If the relevant 196  Breach of Statutory Duty statute protects a limited ascertainable class (eg employees), rather than the public generally, it is more likely that a claim in tort will lie for breach of its provisions (Lonrho Ltd v Shell Petroleum Co 2 All ER 456). 9.2.2 Whether the statute itself provides for any sanction If the statute does not itself provide for any sanction then this may indicate that Parliament did intend to allow claims in tort. On the other hand, if the statute provides a sanction (such as a criminal penalty or some other means of enforcement) then it is less likely that a civil claim will lie (Lonrho Ltd v Shell Petroleum Co). However, the existence of some sanction in the statute will not always preclude a claim in tort. The courts will consider whether the sanction is effective. You will look at this in the case below. In Groves v Lord Wimborne 2 QB 402, the Court of Appeal found that the fine provided for by the Factory and Workshop Act 1878 could not have been intended as the only remedy for breach. The principal reasons for the decision were: The financial level of the penalty (£100 here) when compared with the claimant’s loss. Parliament clearly could not have intended this to be adequate and exclusive compensation for serious injury or death. The Secretary of State had a discretion whether to apply all or part of the fine for the benefit of the injured person. There was, therefore, no certainty that the injured employee would receive any of it. The amount of the fine was to be assessed by reference to the nature of the offence rather than the severity of the injury. So, we have seen that where the sanction provided by the statute is a criminal penalty (eg a fine) then, according to Lonrho, there is a presumption that this is intended as the sole means of enforcement. However, cases such as Groves v Lord Wimborne show that this presumption is rebuttable where the sanction is not an effective remedy. 9.2.3 The relationship between the statute and the common law The court will consider whether the statute complements or contradicts the common law. If it complements the common law, it is more likely that the statute gives rise to a cause of action. In contrast, if allowing a civil claim would defeat or contradict existing common law principles then the courts are less likely to find that Parliament intended a civil claim to lie. 9.2.4 The context of the statutory duty Finally, the courts will consider the context of the statutory duty under consideration. Case law shows that legislation which serves a general social welfare function is unlikely to give rise to a claim for breach of statutory duty. The reasons for this include the fact that a breach of social welfare legislation usually gives rise to other remedies (eg judicial review by the High Court). We have now looked at the preliminary issue which must be considered in every claim for breach of statutory duty –​the issue of whether the relevant statute allows a civil claim. 197 Tort 9.2.5 Existence of civil liability: summary If a statute protects a limited class of people, a claim in tort may be possible but this is not definite. Even if a statute protects only a limited class of people, if it expressly precludes a civil claim for breach then no claim in tort will lie. Furthermore, even if the statute is silent as to whether or not a civil claim can be brought, all relevant factors must be considered. No single factor is conclusive. If a statute imposes a substantial fine for breach of its provisions, it is unlikely a claim in tort will lie. The imposition of a substantial fine does point to Parliament’s intention not to confer any civil liability. However, it is not conclusive. If a statute expressly states that no claim in tort will lie for any breach, this is conclusive. Parliament’s intention has been made clear in this case. If a statute provides for compensation, it is not a conclusive indication that no claim in tort will lie. As Groves v Lord Wimborne illustrates, the amount of compensation, and other factors, will also be relevant. Assuming the statute allows a claim in tort, let us move on to consider the remaining elements of the tort of breach of statutory duty. 9.3 Elements of the tort of breach of statutory duty There are four principal elements of the tort of breach of statutory duty. They are: duty under statute; breach; damage; causation. We will look at the duty element first. 9.3.1 Duty As with a negligence claim, the claimant must prove that the defendant owed the claimant a duty of care. Unlike a negligence claim, however, the source of that duty is statute. The court will look at the wording of the statute in question to see if a duty is owed to the claimant. For example, a statute may say that it protects a limited class of people. A claimant is injured due to a breach of a provision in the statute. How will the claimant establish the existence of a statutory duty? In that case, for a duty to be owed, the claimant must be within the ‘protected’ class. For example, in Hartley v Mayoh & Co 1 QB 383, the claim failed because the deceased was outside the ‘protected’ class. He was a visitor to the factory, not one of the defendant’s employees. The deceased would have had to have been a factory worker to have come within the protection of the relevant statutory regulations. We will now move on to consider the second element in a claim for breach of statutory duty –​ the duty must have been breached. 9.3.2 Breach of duty The extent of the defendant’s statutory obligation is determined by the wording of the relevant statute. For convenience, we can divide this into two issues arising from the wording of the statute: the content or scope of the duty imposed; the standard of liability imposed. 198  Breach of Statutory Duty We can illustrate each of these by looking at case law. The cases considered here concern breaches of statutory health and safety regulations. Remember that such cases remain relevant for the principles they establish despite the fact that the particular health and safety regulations would not now be actionable in a claim for breach of statutory duty following the ERRA 2013. In Smith v Northamptonshire County Council UKHL 27, the claimant was employed as a driver and carer. Part of her job was to go to clients’ homes and take them from their home in a minibus. She suffered an injury whilst doing this work when a ramp she was using at the home of a client collapsed. The claimant claimed that her employer was in breach of its statutory duty to maintain work equipment in good repair. This duty was imposed by the Provision and Use of Work Equipment Regulations 1998 (SI 1998/​2306) (PUWER 1998), reg 5(1). However, this claim for breach of statutory duty failed because the ramp which injured the claimant was not ‘equipment provided for … an employee at work’ within the meaning of PUWER 1998, reg 3(2). In order to establish breach of a statutory duty, the claimant must be able to show that the events complained of fall within the wording of the statute. The second issue we identified is the standard of liability imposed by the statute. Some statutes impose strict liability (ie liability without fault); others are less strict. The starting point, therefore, for considering the issue of breach, will always be the wording of the relevant statute. In Stark v Post Office ICR 1013, the claimant was a postman who was injured when his delivery bicycle suddenly broke. The claimant relied on PUWER 1998, reg 6(1) which states: Every employer shall ensure that work equipment is maintained in an efficient state, in efficient working order and in good repair. The key issue was the fact that the defect in the bicycle could not have been discovered before the accident, even by a thorough inspection. The court held that reg 6(1) imposed an absolute obligation. Since the bicycle was not in an efficient state or in efficient working order when it broke, the Post Office was in breach of its statutory duty. So, this is an example of a case in which the statute imposed strict liability. The Post Office was not at fault, in the sense that it could not have known about the defect, yet it was still liable to the claimant. We will now consider the third element of a claim for breach of statutory duty –​the requirement that the claimant should have suffered damage. 9.3.3 Damage The damage suffered by the claimant must be of the kind which the statute was intended to prevent. This requirement serves the same purpose as the remoteness of damage issue in negligence claims. You will consider this requirement in the case below. 199 Tort In the case of Gorris v Scott (1874) LR 9 Exch 125, the claimant’s sheep were lost overboard a ship. The claimant relied on a statute aimed to prevent the spread of infectious diseases amongst animals on the ship. The claim failed as the claimant’s loss was not the type of loss which the statute was designed to prevent. Another example of this point is that local highway authorities are under a statutory duty (under the Highways Act 1980) to maintain and repair public roads. If a local trader suffers lost profits because the local highway authority is in breach of its statutory duty, the local trader would not have a claim for breach of statutory duty against the highway authority. The trader’s loss is purely economic and the purpose of the highway authority’s duty under the Highways Act 1980 is to protect highway users from personal injury. The trader’s loss, therefore, is not the type of loss which the Act was designed to prevent. 9.3.4 Causation As in a claim in negligence, the causal link between the defendant’s breach and the claimant’s injury must be established. We have now finished looking at a claim for breach of statutory duty from the claimant’s point of view. 9.3.5 Liability for breach of statutory duty: a checklist (1) Does the statute allow a civil claim? (2) Was the particular claimant owed a duty under the statute? (3) Has the defendant breached the statutory duty? (4) Was the claimant’s damage of a kind which the statute was intended to prevent? (5) Has the defendant’s breach caused the claimant’s injury? (6) Defences? 9.4 Defences The defence of contributory negligence is available in claims for breach of statutory duty. 9.5 Interrelationship between statutory and common law duties From your studies in this section, you should have noted that sometimes the same facts may give rise to a claim in common law negligence and for breach of statutory duty. Until recently, this was very often the case in relation to accidents in the workplace caused by breaches of health and safety regulations, but this position has now been changed by s 69 of the ERRA 2013. However, there will still be other situations in which a claim in negligence and a claim for breach of statutory duty may both be possible. In those circumstances the claim for breach of statutory duty may be more advantageous than a claim in negligence if the statute imposes strict liability. An example of this is the case of Curtis v Betts, which you looked at above. 200  10 Land LEARNING OUTCOMES When you have completed this chapter, you should be able to: explain all the elements which a claimant needs to prove to establish a claim in private nuisance; explain all of the elements which a claimant needs to prove to establish a claim in trespass to land; demonstrate understanding of the defences available to a defendant in private nuisance and trespass to land; demonstrate understanding of the remedies available to a claimant in private nuisance and trespass to land; explain the main elements which a claimant needs to prove to establish liability under the rule in Rylands v Fletcher; explain the main elements which a claimant needs to prove to establish liability in the tort of public nuisance; appreciate the overlaps and differences between private nuisance, trespass to land and negligence in this area. 10.1 Introduction If the claimant’s complaint relates to something which is happening or has happened in relation to the claimant’s own land, there are several potential torts in which the claimant may sue. One of these torts is private nuisance, which you will be studying in detail in this chapter. Another potential tort is trespass to land, which you will also study in detail here. Another tort is the tort known as the rule in Rylands v Fletcher which you will consider here. The fourth potential tort is negligence. As you progress through the chapter, you might make a note of any similarities and differences between the torts you will be studying and the tort of negligence which you studied in Chapter 2 and Chapter 3. Focus in particular on the role of fault, and the meaning of reasonableness and foreseeability in the context of all these torts. You should then be in a position to reach a conclusion on all these issues at the end of this chapter. Before looking at the torts of trespass and private nuisance in detail, let us start by thinking about why disputes concerning land give rise to special problems and issues. Land is an important asset because it is where people live and carry on business. For example, suppose that a noisy racetrack is carrying on business next to a residential street. 201 Tort The occupants of the houses value their peaceful enjoyment of their land. The owner of the racetrack wants to use their land to make money. So there is a conflict which the law needs to resolve. Resolution is made more difficult by the fact that land is both unique and immovable. The fact that each piece of land is unique means that it will not always be possible to compensate for an interference with land with money compensation. A claimant who has been dispossessed of land needs a remedy which returns possession of their land to the claimant –​not a payment of money. So, for example, a university where parts of the campus have been occupied by student protestors needs to regain possession by forcing the students to leave. The fact that land is immovable means that a claimant who complains of interference from their neighbour cannot simply go elsewhere. They need a remedy which forces the defendant to stop the interference. For example, an exclusive restaurant situated next to a noisy nightclub cannot get away from the problem because both premises are fixed in proximity to each other. So, land is important as a place to live and a place to carry on business. It is both an asset, and a place where individuals carry on their lives. So, the law needs principles to regulate the use of land and balance conflicting rights. This chapter now considers how the law of tort seeks to achieve that. Let us now think a little more about the kind of disputes that might arise, and the remedies which may be sought. Consider a person using land (the ‘claimant’). There are broadly three ways in which someone (the ‘defendant’) may interfere with that use: 10.1.1 Dispossession The defendant could actually move on to the land themselves and take possession of it (or part of it), so they have dispossessed the claimant who was originally on the land. Here are some examples of how this could occur: Squatters break into an empty house and start to live there. Travellers park caravans on part of an industrial estate. Student protestors occupy buildings on a university campus. In this case the claimant who has been dispossessed needs to be able to bring an action in court to recover possession of the land. An action to recover land is part of the tort of trespass to land. 10.1.2 Direct interference with possession Where the claimant remains in possession, the defendant might interfere with that possession. Here are some examples: Using a path or a drive without permission where there is no right of way. Coming on to land and taking things, eg unauthorised fishing in a trout fishery. Dumping rubbish on land without permission. The claimant needs to be able to bring a court action to stop the interference. They might seek an injunction, eg to stop the dumping of rubbish. Alternatively, they might seek a declaration of their rights, eg a declaration that they are the owner of a disputed driveway, and that the defendant has no right to use it. The claimant might also seek compensation for any damage caused. All of these examples involve interferences with the claimant’s possession of land, which are direct and intentional. The tort to provide a remedy for this kind of interference would be trespass to land. 202  Land 10.1.3 Indirect interference with land Thirdly, a person’s use of land can also be interfered with by things done elsewhere, not on that land. The main example here is things done on neighbouring land. Again, here are some examples: An industrial process carried out on the defendant’s neighbouring land causing toxic fumes which kill plants on the claimant’s land and pollute the soil. Tree roots which grow from the defendant’s neighbouring land underneath the claimant’s land. Noisy activities on the defendant’s land, such as running a motor racing track, which interfere with the claimant enjoying the use of their land. Again, the claimant needs to be able to bring an action to stop the interference, and obtain compensation for any damage caused. In these examples the interference is indirect. The tort to provide a remedy for this kind of interference with the claimant’s use and enjoyment of land is private nuisance. So, we have identified the torts of trespass to land and private nuisance as providing remedies for the various kinds of interference with land. We shall look at those two torts in more detail in this chapter. We will also look at the tort known as the rule in Rylands v Fletcher and the tort of public nuisance. These two torts have a lesser role in protecting against interferences with land but can, where they can be relied upon, come to the assistance of claimants. You should also keep in mind the role played by the tort of negligence. To start with, we are going to look at the tort of private nuisance. 10.2 Private nuisance If a claimant’s complaint relates to something which is happening or has happened in relation to land, we have seen that there are several potential torts which the claimant may use. Where the interference is indirect rather than direct (where trespass to land will be relevant), the most important of these torts in practice is private nuisance. We need to start off with a definition of the tort of private nuisance. 10.2.1 Definition of private nuisance A judicially approved definition of private nuisance can be found in Winfield & Jolowicz on Tort (20th edn). This defines nuisance as an ‘… unlawful interference with a person’s use or enjoyment of land, or some right over, or in connection with it’. This definition has been adopted by many cases, eg by Scott LJ in Read v Lyons & Co Ltd KB 216, and essentially requires the claimant to show: that there is an interference with the claimant’s use and enjoyment of land or some rights they enjoy over it; and that the interference is unlawful. We are going to look at each of these points in turn, starting with the issue of what are interferences for the purpose of private nuisance. 10.2.2 Interferences In Hunter v Canary Wharf AC 655 Lord Lloyd said that there were three types of interferences within private nuisance: (1) nuisance by encroachment on a neighbour’s land; 203 Tort (2) nuisance by indirect physical injury to a neighbour’s land; and (3) nuisance by interference with a neighbour’s quiet enjoyment of their land. The last type of interference (often known as an interference with personal comfort or loss of amenity) is potentially very wide indeed, encompassing, for example, smells, dust, vibration and noise. It will also include interferences with rights enjoyed over land (such as a right to light acquired by prescription). However, the courts are generally slower to find actionable nuisances based on personal discomfort than where actual damage to property or encroachment is concerned. In Walter v Selfe (1851) 4 De G & Sm 315 Sir Knight-​Bruce VC said that, to be actionable in nuisance, the interference had to be something that materially interfered with ‘ordinary comfort’, not ‘elegant or dainty modes … of living’. It has been held, following this, that loss of prospect (a view) from your home is not an actionable interference (Aldred’s Case (1610) 9 Co Rep 57b). A more modern example of this is Hunter v Canary Wharf AC 655. The House of Lords decided that disruption to TV reception caused by a new building was not an actionable interference in private nuisance. The reasoning in this case could equally apply to other modern luxuries such as satellite reception. 10.2.3 Unlawful interference The interference must be unlawful to be a private nuisance. The word that best describes ‘unlawful’ is ‘unreasonable’. It does not usually mean criminal (although in some cases the defendant’s conduct will also constitute a crime). The qualification ‘unlawful’ is necessary because not all interferences will constitute actionable nuisances. People are expected to tolerate a certain amount of noise, smells, etc as part and parcel of everyday life. However, people are not expected to tolerate substantial and unreasonable (excessive) interferences. Unlawful therefore means ‘substantial and unreasonable’. In Sedleigh-​Denfield v O’Callaghan 3 All ER 349, it was said that: A balance has to be maintained between the right of the occupier to do what he likes with his own [land], and the right of his neighbour not to be interfered with. It is impossible to give any precise or universal formula, but it may broadly be said that a useful test is perhaps what is reasonable according to the ordinary usages of mankind living in society, or more correctly in a particular society. The courts will therefore attempt to balance the right of one person to do what they lawfully are entitled to on their land against their neighbour’s right to enjoy their land free from interference. However, the courts find encroachment onto a neighbour’s land (eg overhanging tree branches) to be unlawful without any further consideration. 10.2.4 Relevant factors There are various factors that are relevant in deciding whether an interference is substantial and unreasonable and therefore ‘unlawful’. These are considered below. However, none of them are conclusive of the issue. The court is attempting to ‘balance interests’, and all factors will be taken into account in reaching a decision on unlawfulness. It should be noted that, in deciding whether an interference is substantial and unreasonable (ie unlawful), the court is not concerned with whether the defendant’s conduct is itself unreasonable (ie below the standard of care of a reasonable person). The reasonable person test, although central to negligence, has no part to play in the analysis of whether the interference is unreasonable. A defendant may have acted unreasonably, but this is not the key issue. The relevant control mechanism is found within the principle of reasonable user, ie 204  Land has the defendant’s use of their land unreasonably interfered with the claimant’s reasonable use of their land? 10.2.4.1 Duration and frequency The overall duration of an interference will be a very important factor. The longer the interference has lasted, the more likely it is that the court will consider the interference unreasonable. On the other hand, if the interference is only short-​term then the claimant will generally be expected to put up with it. A related issue is the frequency of the interference. Example Harriet lives next door to her village cricket club. The cricket club was established 50 years ago. Each summer, cricket is played at the club every Saturday afternoon. In an average year, two balls are hit by batsmen into Harriet’s garden. This is unlikely to be unlawful interference. Although cricket has been played for 50 years, the frequency of the interference into Harriet’s garden would not be enough for this to be unreasonable. If, however, 10 balls are hit every Saturday into Harriet’s garden, she might be able to show a sufficient degree of regularity to form the basis of a nuisance claim. We have seen that some degree of continuity and frequency is required for an interference to be unlawful. It therefore follows that generally an isolated incident is unlikely to give rise to liability in nuisance. In Spicer v Smee 1 All ER 489, it was decided that an isolated happening will constitute an actionable private nuisance if it emanates from some continuing state of affairs on the defendant’s property. In the Spicer case this was the continuing and dangerous nature of the defendant’s wiring. In summary, for an interference to be unlawful, the claimant must be able to point to some level of continuity. Isolated happenings will only be actionable in private nuisance if they emanated from a continuous state of affairs. We will consider when isolated events may be actionable under the tort known as the rule in Rylands v Fletcher later in this chapter. We now move on to consider another important factor, the excessiveness of the defendant’s conduct/​extent of the harm. 10.2.4.2 Excessiveness of conduct/​extent of the harm In determining whether an interference is unlawful, the courts will have regard to how excessive the defendant’s conduct is (ie, how far removed it is from ‘normal’ behaviour). This is viewed objectively. Example Jeff lives next door to Anna. Jeff, a student, likes loud music and plays his powerful music system at maximum volume most afternoons. Objectively, the louder Jeff’s music is, the more likely it is that the interference to Anna will be unreasonable. 205 Tort In Matania v National Provincial Bank Ltd 2 All ER 633, the noise caused by substantial renovation work carried out on behalf of the defendant, which lasted from 8am to 5pm each day, was found to be excessive. However, the courts will also look at the extent of the harm (ie the impact on the claimant). This will be viewed subjectively. If, in our example above, Anna does not usually return home from work until late each evening, she would be unable to show that the loud music has much impact on her use and enjoyment of her home. An interference which causes physical damage to the claimant’s land is likely to be considered excessive. This factor will therefore tip the balance in the claimant’s favour meaning such an interference is unlawful (unless the damage is trivial). The next factor we consider is the character of the neighbourhood. 10.2.4.3 Character of the neighbourhood In Sturges v Bridgman (1879) LR 11 Ch D 852, Thesiger LJ said ‘what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey’. At the time of the case, Belgrave Square was a refined area of London and Bermondsey was not. Although very dated in the context of modern London, the sentiment expressed by Thesiger LJ remains valid. The courts will sometimes take into account the character of locality in order to decide whether a particular interference is unlawful. In St Helen’s Smelting Co v Tipping (1865) 11 HL Cas 642, Lord Westbury distinguished between an interference which causes physical (material) injury to property and an interference which causes only personal discomfort and inconvenience. The character of the neighbourhood, he said, would be relevant only to the latter type of interference. This principle was applied in Halsey v Esso Petroleum Co Ltd 2 All ER 145, where the character of the neighbourhood was not taken into account when deciding whether the ‘harmful deposits’ amounted to an unlawful interference (as these caused property damage), whereas it was a relevant consideration when considering the noise and smell (as these only interfered with personal comfort). Following these cases, therefore, if the claimant has suffered interference with personal comfort but not physical damage, whether the interference is unreasonable will be judged in relation to the degree and types of interference which can be expected in that particular locality. Each area will have its own standards. For example, if you live in London, you can expect to have to tolerate more noise from traffic, etc than if you live in a rural village in Wales. Conversely, the smells attributable to farm life are more appropriate to a rural location than a city centre. In the case of Coventry v Lawrence UKSC 13, the Supreme Court clarified the law in relation to assessing the character of the locality. The court should start from the proposition that the defendant’s activities are taken into account when making such assessment. However, such activities should only be considered to the extent to which they would not cause a nuisance to the claimant. Therefore, if the activities cannot be carried out without creating a nuisance, such activities will have to be entirely discounted when assessing the character of the locality. Also, if the activities are in breach of planning permission, they will not be taken into account when assessing the character of the locality. You will now move on to consider the approach adopted by the courts where the activity causing the interference actually benefits the public in some way. 10.2.4.4 Public benefit A defendant may often argue that their activity is reasonable as it benefits the public (for example, by providing a valuable source of hot food to the local community –​a ‘smelly’ 206  Land chip shop in Adams v Ursell 1 Ch 269). However, the courts consistently take the view that the interests of the public should not deprive an individual of their private rights. Public benefit, therefore, is not a relevant factor in deciding whether the defendant’s use is unreasonable. (It may, however, be relevant when the court is deciding whether or not to grant an injunction (considered below).) The next issue we consider is that of malice on the defendant’s part in creating the interference. 10.2.4.5 Malice The extent to which any malice (ie spite or improper motive) on the defendant’s part will be relevant in deciding whether an interference is unreasonable was addressed in the case of Hollywood Silver Fox Farm v Emmett 2 KB 468. In Hollywood Silver Fox Farm, the sole purpose of the defendant’s shooting of a shotgun near to the claimant’s countryside property was to annoy the claimant and, more particularly, to upset the claimant’s silver foxes during breeding time. The interference, as carried out with malice, could not be regarded as a reasonable one. Malice is a factor that is likely to tip the balance in the claimant’s favour, potentially making an interference unlawful that would have been reasonable (and lawful) if done without malice. 10.2.5 Abnormal sensitivity In Robinson v Kilvert (1889) LR 41 Ch D 88, the claimant occupied the ground floor of a warehouse. The defendant occupied the cellar below the claimant and manufactured paper boxes, which required heat and dry air. The defendant put up pipes to heat their cellar. The heat went up to the floor of the claimant’s room and damaged the claimant’s stock of brown paper by drying it and preventing it from acquiring weight. The claim failed because the claimant’s paper was abnormally sensitive as it was sold by weight. The hot, dry conditions reduced its weight and hence its value. ‘Normal paper’ (not sold by weight) would have been unaffected by the defendant’s interference. In Robinson v Kilvert, if normal paper had been affected (even if to a lesser extent), then a nuisance could have been established. The defendant’s use of the cellar would have been unreasonable and the claimant would have successfully recovered for all their loss. So, when deciding whether an interference is unlawful, the courts will look at its impact on the normal user of neighbouring land, ignoring any abnormal sensitivity of the claimant. However, if the claimant can show that the interference is unlawful when judged against the normal user of their land, they can then recover for all their loss even if greater (due to their sensitivity) than the normal user. This is an application of the ‘egg-​shell skull rule’ discussed in Chapter 3. This is illustrated well by the case of McKinnon Industries v Walker 3 DLR 577. Here the claimant grew sensitive orchids. The defendant’s business emitted fumes which damaged the orchids. The fumes would have damaged ordinary, more robust plants. The claimant could, therefore, establish an actionable nuisance and recover for the damage to the orchids. We move on now to consider the important question of who can sue in the tort of private nuisance. 10.2.6 Who can sue in private nuisance? According to the House of Lords in Hunter v Canary Wharf 2 All ER 426, only a person with the right to exclusive possession of land can sue in private nuisance (a right to exclusive possession means a right to exclude everyone else). An owner-​occupier of land has the best right to exclusive possession through the proprietary interest that they enjoy. A tenant of land 207 Tort also enjoys the right to exclusive possession through their proprietary interest in the leasehold title. Therefore, both owner-​occupiers and tenants can sue in private nuisance as they have the right to exclusive possession deriving from their proprietary interest. Children of the owner-​occupier do not have a right to exclusive possession and cannot therefore bring a claim. The same applies to anyone staying in property legally owned by another person as their guest. For example, hotel guests do not have the right to exclusive possession of their rooms. They simply have a right to use their rooms. In summary, therefore, according to the Hunter case, to be able to sue in private nuisance, a claimant must have a proprietary interest in the land. A person who has exclusive possession of the land does have such an interest. A person who occupies land but does not have the right of exclusive possession cannot sue in nuisance. The interaction between the position of someone without the necessary proprietary interest to pursue a claim under common law of nuisance and Article 8 of the ECHR has been considered by the Court of Appeal in Dobson v Thames Water Utilities EWCA Civ 28. Under s 6 of the Human Rights Act (HRA) 1998, the courts should develop our law so as to be consistent with the rights contained in the European Convention on Human Rights (ECHR). Article 8 of the ECHR provides that everyone should have the right to respect for their private and family life. This would include the right to enjoy one’s home. Article 8 applies to all citizens, not just those with ownership rights, and so it can be argued that our common law, as embodied in the Hunter decision, does not comply with Article 8. The defendant in Dobson v Thames Water Utilities, being a public body, has an obligation under s 6 of the HRA 1998 to act compatibly with the ECHR. The issue the Court had to decide was whether, in a case where an award of damages in nuisance to a person with a proprietary interest was given, it was necessary to give an additional sum of compensation in order to afford ‘just satisfaction’ for the breach of Article 8 of the ECHR under s 8(3) of the HRA 1998 to a person who lived in the same household but who had no proprietary interest in that property. The court reiterated that damages in private nuisance, following Hunter, are awarded as damage to ‘land’ but despite that fact considered it ‘highly improbable’ that the Strasbourg Court would think it necessary to award a further sum on top for breach of Article 8. The Court decided therefore that the award of damages at common law to a property owner would usually be ‘just satisfaction’ for the purposes of s 8(3) of the HRA 1998 and no additional award of compensation under that Act would normally be necessary. Despite this decision, the Court of Appeal’s use of words such as ‘usually’ and ‘normally’ leaves open the possibility of future cases against public bodies raising the issue of compatibility between our common law of nuisance and Article 8 of the ECHR again. We have now looked at who can sue in the tort of private nuisance. Let us therefore move on and look at the potential defendants to a claim in this tort. 10.2.7 Who is liable in private nuisance? There are three potential defendants: the creator of the nuisance; the occupier of the land from which the nuisance originates (whether or not the occupier also created it); the landlord. We now consider the liability of each in turn. 208  Land 10.2.7.1 Creator The original creator of the nuisance remains liable for it even if the land is now occupied by someone else. The creator did the first wrong, and therefore it is fair that they remain responsible for any damage (subject to the rules on remoteness of damage). Example Five years ago, Tanya installed a water feature in her garden near the boundary between her land and that of her neighbour, Roger. Tanya moved house two years ago. Roger has just discovered that the pipes connected to this feature have been leaking and the escaping water has damaged the foundations of his house. Roger could sue Tanya as creator of the nuisance. It is immaterial that she no longer owns the house. However, if the creator can no longer be found or is not financially worth suing, the claimant must look to the current occupier of the land for a remedy. 10.2.7.2 Occupier The current occupier of land is the usual defendant. The occupier will be liable for nuisances they have created (whether by positive acts, or by failing to take steps, eg failing to repair a roof that becomes dangerous). In addition, the occupier may also be liable for nuisances that are created by other persons in the following circumstances: Where the nuisance was created by an employee acting in the course of their employment (the occupier is liable under the normal principles of vicarious liability, as studied in Chapter 6). Where the nuisance is created by an independent contractor, provided the nature of the work carried a special danger of the nuisance being created (see the Matania case referred to at 10.2.4.2 above, where the risk of a nuisance was inevitable due to the substantial alteration work being carried out by the contractor). Where the nuisance is created by a visitor, predecessor in title or trespasser, or arises through some natural occurrence, provided the occupier has adopted the nuisance or continued it. The third situation was considered in the case below. In Sedleigh-​Denfield v O’Callaghan 3 All ER 349, the defendant’s land had a ditch in which a pipe or culvert for carrying off rain water was laid without the knowledge or consent of the defendant, ie trespassers. The defendant, however, subsequently became aware of the pipe’s existence and they in fact used it for the draining of their fields. To prevent leaves or other matter blocking the opening of the pipe, a grating was placed on the top of the pipe. The consequence of this was that during a heavy rainstorm the pipe became choked with leaves, so that the water overflowed and caused damage to the claimant’s property. 209 Tort The claimant succeeded because the defendant was aware of the nuisance and failed to take any reasonable steps. The court held that an occupier is liable for a nuisance created by a trespasser if: the occupier has either ‘adopted’ or ‘continued’ the nuisance; occupiers ‘adopt’ a nuisance if they make use of the thing which constituted the nuisance; occupiers ‘continue’ a nuisance if, once they know or ought reasonably to know of its existence, they fail to take reasonable steps to end the nuisance. Although case law has not categorically decided the point, it is thought that when considering what are ‘reasonable steps’ for the purposes of ending a nuisance, the courts will take into account the defendant’s actual financial resources. Although the Sedleigh-​Denfield case concerned a nuisance created by a trespasser, the same approach has been used in cases where the nuisance is created by visitors (see Lippiatt v South Gloucestershire CC 4 All ER 149); predecessors in title (St Anne’s Well Brewery Co v Roberts (1928) 92 JP 180); and natural events (see Leakey v National Trust QB 485). The final category of potential defendant is a landlord. We now look briefly at when a landlord can be liable in private nuisance. 10.2.7.3 Landlord Where a nuisance arises on premises which are let to a tenant, the general rule is that the landlord is not liable. The tenant is the proper defendant because the tenant is in occupation. There are, however, some situations where the landlord could still be liable. The landlord will be liable where they have expressly or impliedly authorised the nuisance, ie the nuisance is the inevitable result of the letting. An example of this is the case of Tetley v Chitty 1 All ER 663. Here a local council let a piece of land to a go-​kart racing club for use as a racing track. The court found that the inevitable consequence of this letting was the creation of a noise nuisance to neighbours. The landlord was therefore liable. Another situation where a landlord will be liable is where the nuisance existed at the start of the letting and the landlord knew or ought reasonably to have known of it. The final situation where a landlord will be liable arises where the landlord has covenanted (ie promised) to repair the premises, or has the right to enter to do so, and, in either case, fails to make the repairs, giving rise to the nuisance (Payne v Rogers (1794) H Bl 350). This, however, does not exonerate the tenant, who may also be liable as occupier. Having looked at who can sue and be sued in private nuisance, let us move on to look at the requirement of damage. 10.2.8 Damage Nuisance is not a tort which is actionable per se, so the claimant must prove that they have suffered damage. We now look at the types of damage recoverable. 10.2.8.1 Types of damage recoverable Given that the tort is an interference with land, physical damage to land or buildings is clearly recoverable. (Crops/​plants growing in the land are treated as part of the ‘land’.) 210  Land In Hunter v Canary Wharf, the House of Lords stated that it was inappropriate to use private nuisance to claim for personal injury. The appropriate cause of action is in negligence. This relates to the fact that private nuisance is a tort against land and not against the person. Nuisance is a tort against land. So interference with the quiet enjoyment of the land clearly comes within its scope even though it is not ‘tangible’ damage in the sense required by negligence. Given the reasoning in the Hunter case, damage to personal property (eg personal belongings) is probably outside the scope of private nuisance. The appropriate cause of action would be negligence. However, this point was not specifically dealt with in Hunter, and other cases (eg Halsey v Esso Petroleum) have allowed recovery on the basis that such losses flow as a consequence of the personal discomfort caused by the nuisance. In Hunter, it was stated that where the claimant can prove recoverable damage (damage to property and/​or personal discomfort) then the defendant would be liable for any consequential losses flowing from this as well. A good example of this would be loss of profits where a nuisance prevents a business from operating normally. 10.2.8.2 Causation and remoteness of damage The claimant must prove that the unlawful interference caused their damage. The usual tests for causation apply (the ‘but for’ test and the rules on intervening acts which you studied in Chapter 3). In Cambridge Water Co v Eastern Counties Leather plc 2 AC 264, it was decided that the same test for remoteness of damage (the ‘Wagon Mound’ test) applies as in negligence. What the court must decide, therefore, is whether the kind of damage which occurred was reasonably foreseeable to someone in the defendant’s position at the time the relevant acts were done. It was also confirmed in Cambridge Water Co v Eastern Counties Leather plc that liability in private nuisance does not depend on the defendant’s fault. Lord Goff said: ‘… as I have said, it is still the law that the fact that the defendant has taken all reasonable care will not of itself exonerate him from liability, the relevant control mechanism being found within the principle of reasonable user.’ Fault does, however, have a role to play, but at the remoteness stage. Liability in private nuisance will only attach to uses of land which involve a foreseeable risk of harm. Having looked at a private nuisance claim from the claimant’s point of view, let us now turn to consider what defences might be available to a defendant. 10.2.9 Defences When we study the defences to a claim in private nuisance, we need to distinguish between ‘effective’ and ‘ineffective’ defences. The former will enable the defendant to escape liability, whereas the latter, although often argued, will not. We look at the effective defences first. 10.2.9.1 Effective defences Prescription The defence of prescription arises if the defendant can show that there has been a continuing nuisance for a period of at least 20 years against the claimant. The effect of prescription is that the defendant has ‘acquired’ the right to commit the nuisance. The defence is rarely available, however, as the interference must have been actionable by the particular claimant for at least 20 years. 211 Tort Example 1 For five years Anita has lived next door to a factory which has regularly emitted noxious fumes and a nauseating smell. The same factory has been operating at the site for 30 years. If Anita sues the factory’s owner in private nuisance, the defence of prescription will not apply as the nuisance has been actionable by Anita for only five years. Example 2 Mrs Ali has, for more than 20 years, made sweets in the back of her premises. This involves using large pestles and mortars (utensils for pounding and mixing the ingredients). Dr Khan, a medical consultant, owns a house, the garden of which runs down to Mrs Ali’s premises. The noise and vibration caused by using the large pestles and mortars do not affect the doctor’s enjoyment of his property until he builds a consulting room at the end of his garden. He then discovers that the noise and vibration substantially interfere with his practice. He sues Mrs Ali in private nuisance. Mrs Ali would not be able successfully to rely on the defence of prescription because, although her activities have been continuing for 20 years, they have not been an actionable nuisance for this period. They have been actionable only since Dr Khan built his consulting room. (This example is based on the case of Sturges v Bridgman (1879) 11 Ch D 852.) Statutory authority Sometimes a statute will permit a defendant to commit a nuisance. In such cases, the defendant may be able to rely on the defence of statutory authority if it can show that the nuisance was an inevitable result of doing what the statute authorised. This can be a defence to any tort, but it most commonly arises in relation to nuisance claims. It is unlikely to be available to private individuals, and is of most use to public authorities acting under statutory powers. Example An oil company is authorised by an Act of Parliament to construct an oil refinery in a particular location. Local residents complain about the noise and vibrations emitted from the refinery. The oil company is likely to be able successfully to plead statutory authority as a defence on the basis that the operation of the refinery is implicitly authorised by the Act of Parliament and the nuisances are, therefore, inevitable. (This example is based on the case of Allen v Gulf Oil Refining Ltd AC 1001.) Contributory negligence This partial defence is available to claims in private nuisance. The usual principles which you studied in Chapter 3 apply. Consent If the defendant can show that the claimant has specifically agreed to accept the interference, the claimant’s claim in nuisance will fail. 212  Land Example Mike and Anne are neighbours. As a favour, Mike agrees to let Anne put her garden rubbish on his bonfire each week. If the smoke from Mike’s bonfires blows across Anne’s garden to such a degree as to constitute a nuisance, she would probably be met with the defence of consent. Act of God or nature This is not strictly a defence but an operation of the law concerning the circumstances in which an occupier can be liable for natural events on their land. Where an interference on the defendant’s land results from a ‘secret unobservable process of nature’ (eg subsidence under or near the foundations of the defendant’s house (as in Wringe v Cohen 1 KB 229)) or from an act of God (eg lightning) then the defendant will not be liable in nuisance unless they adopt or continue the nuisance (see 10.2.7.2 above). Necessity The two elements of the defence of necessity are: a situation of necessity exists because of an imminent danger to life and limb (or, in very limited circumstances, a threat to property); and the defendant’s actions were reasonable in all the circumstances. The defence most often arises in the context of intentional torts such as trespass to the person and trespass to land. The defence cannot be used if the circumstances giving rise to necessity were of the defendant’s own making. For this reason, the defence cannot be relied upon if the defendant was negligent, ie at fault in any way. The defence has been successfully relied upon in the context of private nuisance. In the case of Southport Corporation v Esso Petroleum AC 218, the defendant’s oil tanker ran aground and there was a danger that it might break up with the probable loss of the ship and the loss of the lives of her crew. In order to prevent this, the master discharged 400 tons of oil into the sea. The river estuary was polluted, and the claimant corporation alleged that the deposit of oil on the foreshore gave rise to a claim in nuisance. The House of Lords held that a nuisance had been committed but that the defence of necessity succeeded. The defendant was absolved of liability because life and limb were at risk. When we started to look at defences, we distinguished between ‘effective’ (valid) defences and ineffective defences. Having considered effective defences, we now turn to ineffective defences. 10.2.9.2 Ineffective defences What we are considering here are arguments which a defendant will not be successful in raising as potential defences to claims in nuisance. The first one is that the claimant ‘came to the nuisance’. Claimant ‘came to the nuisance’ You can see an illustration of this in the following example: Example Richard buys a house next to a factory. Considerable noise from the machinery and noxious fumes emanate from the factory. He can still sue in private nuisance for the noise and the fumes, even though he knew about them when he bought the house. The factory owner cannot successfully defend the claim by claiming ‘You bought the house with your eyes open’. 213 Tort The justification for this rule is that one landowner could, in effect, potentially block the sale of adjoining property if their unreasonable use of land were unchallengeable. This would restrict the property market and not be in the public interest. Even if the adjoining land did change hands, its use could be curtailed if a neighbour could argue ‘I got here first’ with their particular use. In Coventry v Lawrence UKSC 13, the Supreme Court held that, provided a claimant in private nuisance uses their property for essentially the same purpose as their predecessors before the nuisance started, the defendant cannot rely on the defence that the claimant ‘came to the nuisance’. However, where a claimant builds on their land or changes the use of the property after the defendant had initially commenced the activity then the claimant’s claim for nuisance could fail. Although it is generally no defence for a defendant to argue that the claimant came to the nuisance, a court may consider it a relevant factor in deciding whether or not to grant the claimant an injunction (see 10.2.10 below). Public benefit The fact that the defendant’s activity is beneficial to the public will not afford them a defence. However, the court may take this fact into account when deciding whether or not to grant an injunction (see below). Contributory actions of others It is no defence that the nuisance results from the separate actions of several people. In other words, a defendant cannot argue that their act alone would not constitute an actionable nuisance. Example There are many stalls at a fair which have music playing. The combined effect of the music from all the stalls is to create a nuisance. Each stallholder who has music playing will be liable in nuisance. Planning permission The view of the courts is that only Parliament can take away private rights to sue (by primary or secondary legislation). Therefore, the mere grant of planning permission (which is granted by local authorities and not Parliament) does not legitimise a nuisance. For example, in the case of Wheeler v Saunders 2 All ER 697, a farmer obtained planning permission to build a pig unit on his land. The owners of some holiday cottages on adjacent land complained of the smell and noise emitting from the pig unit. The farmer was not allowed to claim in his defence that he had planning permission. However, the grant of planning permission can operate to change the character of the neighbourhood, which is, as we have seen, a consideration when deciding whether an interference with personal comfort is unlawful. For example, in Gillingham BC v Medway Docks Co Ltd 3 WLR 449, the planning authority granted planning permission for a former naval dockyard to be converted into a busy container port. Local residents complained about the noise and vibration from the heavy lorries using the port. When deciding whether this amounted to an unlawful interference, the court said you had to consider the character of the neighbourhood as it was after the grant of the planning permission and not as it was before. The residents now lived in an area that was a container port –​in this context the level of noise, etc was not unlawful. 214  Land In Coventry v Lawrence UKSC 13, the Supreme Court held that, where planning permission stipulates limits as to the frequency and intensity of noise, then such conditions within a planning permission may be relevant in assisting the claimant’s action in private nuisance. We now turn to the topic of remedies in the tort of private nuisance. 10.2.10 Remedies The two principal remedies are damages and an injunction. Example Jeremy owns a house opposite an oil depot. He complains about the following problems which have been occurring for five years: acid smuts from a boiler in the depot which have damaged plants in his garden; an unpleasant smell from the oil; noise from the boilers at the depot at night; noise from lorries at the depot at night. Jeremy intends to sue in private nuisance. Jeremy will be seeking monetary compensation (damages) to compensate him for these interferences with the use and enjoyment of his land. He will also ask the court to make an order regulating the oil depot’s activities. Such an order is known as an injunction. (This example is based on the case of Halsey v Esso Petroleum Co 1 WLR 683.) 10.2.10.1   Damages Damages will be awarded for any loss which the claimant has already suffered by the date of trial. The court also has a limited power to award damages for future loss. Physical damage to the claimant’s land. Where the nuisance damages the claimant’s land (including buildings on it and plants growing in it), a claimant will generally be awarded damages to reflect the cost of repairing the damage or, if this is not possible, the loss in value of the land in question. Personal discomfort. Where the claimant has suffered an interference with their personal comfort, the value of the claim is more difficult to assess. In Hunter v Canary Wharf, it was suggested that personal discomfort should be valued by looking at the loss of amenity value of the land in question (ie the land with the nuisance being worth less than the land without the nuisance). In many nuisance cases, the claimant will want damages to compensate for the defendant’s conduct to date, but where the interference is continuing, they will also want an injunction to regulate the defendant’s future conduct. 10.2.10.2   Injunctions An injunction is an order of the court which restrains the commission of or continuance of some wrongful act in the future. 215 Tort Injunctions are available in many areas of tort, including nuisance, where claimants often seek an injunction to stop the defendant’s unlawful interference from continuing. You should note, however, that an injunction is not available in negligence. A claim brought in negligence always relates to an event which is finished, ie it is in the past. As such, there is no scope for an injunction, and damages are the appropriate remedy. We will now look briefly at the types of injunction available. Prohibitory injunction This type of injunction forbids the defendant from persisting in some wrongful act, ie it stops the defendant from acting in a particular way. Mandatory injunction By this type of injunction, the court orders the defendant to take some positive action to rectify the consequences of what they have done. As the court is requiring the defendant to act positively, such injunctions are granted less readily than prohibitory injunctions. A ‘quia timet ’ injunction Normally, either of the types of injunctions we have looked at so far will be granted once the tort has been committed. For nuisance this means that the claimant must have suffered damage before seeking an injunction. However, exceptionally, the courts are prepared to grant either a prohibitory or a mandatory injunction quia timet, ie in anticipation of the commission of the tort by the defendant, in order to prevent the claimant suffering any damage. In order to obtain such an injunction, the claimant will have to show: they are almost certain to incur damage without the injunction; and such damage is imminent; and the defendant will not stop their course of conduct without the order of the court. Discretionary remedy An injunction is an equitable and therefore discretionary remedy, which means that although a claimant can seek an injunction, whether or not to grant the injunction is the decision of the court, having regard to all the circumstances of the case. One crucial point to appreciate about all types of injunction is that they will not be awarded where common law damages would be an adequate remedy. However, common law damages can only be awarded for past breaches which have already occurred. Where a claimant seeks to prevent future breaches, common law damages will not be an adequate remedy. Only an injunction is adequate in those circumstances. Assuming the claimant has made out a prima facie case for grant of an injunction, the court must then decide how to exercise its discretion whether or not to grant the injunction. If, in the exercise of its discretion, the court decides not to grant the injunction, it has the power to grant damages instead. Damages granted in lieu of an injunction can cover future breaches. The claimant receives the damages as compensation for future interference with their rights, instead of an injunction preventing such interference. How does the court decide whether it should exercise its discretion to refuse the injunction and grant damages instead? Guidelines were given in the case of Shelfer v City of London Electric Lighting Co 1 Ch 287. Essentially, where the claimant has made out a prima facie case for grant of an injunction, the court may exercise its discretion to refuse an injunction and grant damages instead where: the harm suffered by applicant is: small; and 216  Land capable of being quantified in financial terms; and capable of adequate compensation by damages; and it would be oppressive to the defendant to grant the injunction. In other words, if a sum of money will adequately compensate the claimant, the court will not grant an injunction halting or restricting the defendant’s activity. In Coventry v Lawrence UKSC 13, the Supreme Court held that the application of the guidelines from Shelfer above must not be a fetter on the exercise of the court’s discretion. It would normally be right to refuse an injunction if the four tests were satisfied and there were no additional relevant circumstances pointing the other way. However, the fact that those tests are not all satisfied does not mean that an injunction has to be granted. Furthermore, the public interest may be a relevant consideration (such as the employees of the defendant losing their jobs if an injunction is granted or whether other neighbours in addition to the claimant are badly affected by the nuisance). Also, where the nuisance complained of has previously been authorised in a planning permission, this may influence the court to conclude that it is in the public benefit that the claimant is awarded damages rather than an injunction. In the next section you will consider two cases where the Court of Appeal was required to decide whether or not to award an injunction to the claimant. In Miller v Jackson 3 All ER 338, an injunction was refused by the Court of Appeal because it was considered appropriate that the public interest in the playing of cricket should prevail over the private interests of the claimants in not having their house and garden inundated by cricket balls. Furthermore the claimants had bought their house knowing that cricket was played next door and balls would, therefore, sometimes be hit on to their property. The Court took into account both the public benefit of the defendant’s conduct and the fact that the claimant ‘came to the nuisance’ in deciding that damages were an adequate remedy. (Note: Lord Denning decided the interference was not actually a nuisance, but the rest of the Court did not agree.) In Kennaway v Thompson QB 88, the Court of Appeal decided that the public benefit of the power boat racing was not sufficient to deprive the claimant of an injunction. It therefore granted a prohibitory injunction but did not halt the club’s activities altogether; rather, it restricted the club’s racing activities and the noise levels of boats using the lake at other times. The decision in Kennaway v Thompson is arguably the fairer decision as it achieved a better balance between the rights of the claimant and the wider public benefit. We have now studied the two principal remedies for private nuisance. There is, however, a third, at which we now take a brief look. 10.2.10.3   Abatement (self-​help) Abatement involves the removal of the interference by the victim. The victim must, however, normally give prior notice to the wrongdoer, except in an emergency or where the nuisance can be abated (removed) without entering the wrongdoer’s land (Lemmon v Webb AC 1). 217 Tort Example Samir and Terry are neighbours. The branches of a tree in Terry’s garden overhang Samir’s drive, making it difficult for Samir to get his car in and out of his garage. Rather than suing Terry for private nuisance, Samir would like to resolve the problem amicably. He has therefore approached Terry, who has refused to do anything about the tree. Samir can cut down the overhanging branches himself, exercising the remedy of abatement (self-​help). He does not need to notify Terry in advance because he does not need to enter Terry’s land to remove the nuisance. However, the branches still belong to Terry and must be returned to him once they have been cut (Mills v Brooker 1 KB 555). As our example may have suggested to you, there is considerable scope for ‘friction’ between neighbours caused by the right to abate. Terry may well not want his tree cut down. Alternatively, he may object to having the cut branches returned to him! Even though abatement is a legal remedy, it can cause serious problems. The best advice is always to reach agreement with your neighbour before exercising this right. 10.3 Differences between private nuisance and negligence The principal differences between private nuisance and negligence include the following: Private nuisance is an interference with land. Consequently, only someone with a proprietary interest in the land affected by the interference can sue. The class of potential claimants in negligence is wider since it is not necessary to show that the use or enjoyment of the claimant’s land has been affected. Private nuisance requires some continuity. Therefore, an isolated interference, unless it results from a state of affairs, will not constitute a private nuisance. Liability in negligence does not require any continuity –​an isolated act or omission is enough. The concept of reasonableness has relevance for both torts. In deciding whether an interference is unlawful for the purposes of a nuisance claim, the relevant issue is whether the defendant’s use of the land is unreasonable. In a negligence claim, on the other hand, the issue is whether the defendant’s act is unreasonable, ie whether the defendant has fallen below the standard of the reasonable person in the defendant’s position. Where a defendant is sued in private nuisance for a hazard which has arisen naturally on the land, the courts are willing to take into account the defendant’s financial means. A defendant’s financial resources are generally irrelevant, however, in deciding whether the duty of care has been breached in a negligence claim. A defendant can still be liable in private nuisance even if the defendant has exercised reasonable care. (The relevant issue is not whether the defendant’s act is reasonable, but whether the use of the land is reasonable.) In negligence, on the other hand, the defendant will be liable only if they have fallen below the standard of the reasonable person. A claimant can sue in private nuisance for intangible damage (as well as tangible damage). Intangible damage is insufficient for a negligence claim. Personal discomfort 218  Land caused by, for example, noise and smells, would not constitute ‘damage’ for the purposes of a negligence claim. Following Hunter v Canary Wharf Ltd 2 All ER 426, it would appear that personal injury no longer falls within the scope of private nuisance. (The same may also be true of damage to personal property.) This represents a major difference between claims in private nuisance and negligence. An injunction is a potential remedy if a claim in private nuisance succeeds. It is not a remedy in a negligence claim. It is important to be aware of the possibility of a claimant having claims in both private nuisance and negligence. This would be the case only where a claimant has suffered actual (tangible) damage to their property. If a claimant has only suffered intangible damage (eg personal discomfort from smells or noise), a claim would lie only in private nuisance since this type of damage is insufficient for a claim in negligence. A summary of the main differences is shown in the table below. Table 10.1 Private nuisance and negligence compared Private nuisance Negligence The nature of the claimant The nature of the claimant Private nuisance is a claim intended to protect The class of persons who may claim in negligence a claimant’s interest in land. Therefore, only a is not limited in this way since the types of harm claimant with a proprietary interest in the land covered by a negligence claim are much wider. affected may bring a claim: Hunter v Canary Wharf The type of harm covered The type of harm covered Private nuisance is narrower than negligence Negligence provides remedies for a wider range of since it provides a remedy only where there is harms. interference with the claimant’s use or enjoyment of land. It is arguable whether or not a personal injury, Personal injury and damage to personal property or damage to personal property, suffered by would be actionable in negligence. the occupier of land could be actionable in nuisance: Hunter v Canary Wharf. A claim in nuisance requires a continuing or There can be a claim in negligence in respect of a recurrent state of affairs. single isolated incident of damage. Private nuisance is wider than negligence in that Intangible damage is not sufficient to found a claim it can provide a remedy for intangible damage in negligence. such as noise and smells (which affect the claimant’s land). There is an overlap between private nuisance and negligence, in that where there is tangible damage to C’s land, there may be a remedy in both private nuisance and negligence (subject to the other elements of each claim being satisfied). (Continued) 219 Tort Table 10.1 (Continued) Private nuisance Negligence The nature of the default required The nature of the default required D may be liable in private nuisance even where The tort of negligence will protect a claimant from they have not been negligent. harm carelessly inflicted. Test in private nuisance is: whether there has In negligence, C needs to show that D fell below a been an unlawful interference with C’s use and reasonable standard of care. enjoyment of land. An interference is unlawful when it is unreasonable. Even where a defendant has taken all reasonable care in their activities, they may still be liable if the interference caused is unreasonable. Sometimes this distinction breaks down: where D fails to abate a nuisance caused by an act of nature or actions of a third party. D may be liable if they allow such nuisance to continue when it would have been reasonable to take steps to remove it. Here, liability in nuisance depends upon the reasonableness of D’s actions. It is therefore closely related to liability in negligence –​Leakey v National Trust. Nature of remedies available Nature of remedies available Claimants in private nuisance can seek a remedy Claimants in a negligence claim can seek a remedy in damages. in damages. Private nuisance can be remedied by the grant An injunction is not appropriate and not available in of an injunction. a claim in negligence. Conclusion A claim in private nuisance would be more appropriate than a claim in negligence where the claimant complains of an unreasonable interference with their use and enjoyment of land and any of the following factors applies: the interference is intangible –​such as noise or smells, vibrations or smoke; or the claimant is unable to prove sufficient lack of care on the part of the defendant –​ie where interference is not negligent but is still judged unreasonable; or the claimant wishes to seek an injunction to prevent future continuance of the interference. On the other hand, a claimant would need to claim in negligence rather than private nuisance where: the claimant does not have a proprietary interest in the land affected; or the damage complained of is personal injury or damage to personal property; or the damage complained of arises from a single isolated incident rather than a continuing state of affairs. 220  Land 10.4 The rule in Rylands v Fletcher The rule in Rylands v Fletcher comes from the case of the same name (Rylands v Fletcher (1868) LR 3 HL 330). This case created a tort that covers the situation where there is an escape of something dangerous in the course of a non-​natural use of land. The occupier of the land is liable for the damage caused as a result of the escape, irrespective of fault. The tort, therefore, imposes strict liability for the harm because it is not based upon the need to prove that the occupier failed to take reasonable care or that the defendant has been an unreasonable user of their land. The rule in Rylands v Fletcher is a type of private nuisance that protects claimants from interferences due to isolated escapes from a neighbour’s land. The rules on who can sue, who can be liable, the types of damage recoverable (eg personal injury is not a harm protected by the tort), the defences and the remedies available are essentially the same as those of private nuisance. The elements of the tort are: the defendant brings onto their land for their own purposes something likely to do mischief if it escapes which represents a non-​natural use of land it causes foreseeable damage of the relevant type. Each of these elements is considered below. 10.4.1 The defendant brings onto their land for their own purposes something likely to do mischief The thing or substance brought onto land need not be dangerous in itself but must be capable of causing damage if it escapes. The kinds of things that have been found to be likely to cause damage if they escape are water, cattle, sewage, fumes and electricity. In Transco v Stockport Metropolitan Borough Council UKHL 61, water had escaped from a pipe belonging to the defendant local authority and supplying a block of flats of which it was the owner. The water caused the collapse of a nearby railway embankment which left a gas pipe belonging to the claimant unsupported and at risk of damage. The claimant claimed against the local authority for the cost of remedial measures to protect the gas pipe, arguing that the local authority was liable for damage caused by the escape of the water without proof of negligence. One of the issues to be decided was whether the local authority had brought onto its land something likely to cause danger or mischief if it escaped. The House of Lords restricted the ability of claimants generally to satisfy this element of the tort. The court held that it must be shown that the defendant had done something which they recognised, or, judged by the standards appropriate at the relevant place and time, they 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 of. The requirement of a risk of mischief (ie damage) was, therefore, increased from ‘likely’ to ‘exceptionally likely’. This was not satisfied on the facts of Transco v Stockport Metropolitan Borough Council and the claim failed. 10.4.2 Escape There must be an escape of a ‘thing likely to do mischief’. In contrast to private nuisance, which requires continuity and frequency before an interference is unlawful, the rule in Rylands v Fletcher applies to isolated escapes from land. 221 Tort The necessary requirement for an escape is that the substance or item causing damage must actually move from the defendant’s premises to a place outside the defendant’s occupation or control. This was confirmed by the Court of Appeal in Stannard (t/​a Wyvern Tyres) v Gore EWCA Civ 1248. Tyres stored on the defendant’s land caught fire and destroyed both the claimant’s and the defendant’s premises. The claim failed as, while fire had spread from the defendant’s land to the claimant’s land, the tyres themselves had not escaped. (The fire itself had not been brought onto the defendant’s land and then escaped.) 10.4.3 Non-​natural use of land The rule in Rylands v Fletcher only applies when the thing that causes damage by its escape is not ‘naturally’ on the defendant’s land. The leading case on the meaning of ‘non-​natural use’ is Transco v Stockport Metropolitan Borough Council (considered above). The House of Lords held that the test was that the use of land must be extraordinary or unusual according to the standards of the day. This indicates that the use of land for normal industrial purposes is not generally a ‘non-​natural use’ as it is regarded as a natural use of land. However, it is a question of fact in each case. For example, while a factory that produces bicycles is an ordinary use of land, it is likely that a producer of explosives would be deemed an extraordinary or unusual use of land. 10.4.4 Causes foreseeable damage of the relevant type While the first three elements of requirements for the rule in Rylands v Fletcher come from the Rylands case itself, this fourth requirement was added by Cambridge Water Co Ltd v Eastern Counties Leather plc 2 AC 264. This case introduced the remoteness principle from negligence (The Wagon Mound (No 1) considered in Chapter 3) as an element of the rule in Rylands v Fletcher. The claimant was ultimately unsuccessful in Cambridge Water Co Ltd v Eastern Counties Leather plc because the damage it suffered was held not to be reasonably foreseeable, ie it was too remote. 10.4.5 Defences 10.4.5.1 Escape caused by the unforeseeable act of a stranger The defendant will not be liable if they could not have reasonably foreseen the act of the stranger and therefore could not do anything to prevent the harm. 10.4.5.1 Escape caused by an ‘act of God’ which could not have been reasonably foreseen The defendant will not be liable for an extraordinary act of nature, which could not have been reasonably foreseen. 10.4.5.2 Statutory authority This is considered in the context of private nuisance above. 10.4.5.3 Consent (voluntary assumption of risk) This is considered in Chapter 3. 10.4.5.4 Contributory negligence This is considered in Chapter 3. 222  Land 10.5 Public nuisance Public nuisance is a crime that is defined as: an act or an omission that endangers the life, health, property or comfort of the public, or obstructs the public in the exercise or enjoyment of rights common to all His Majesty’s subjects. (Archbold: Criminal Pleading, Evidence and Practice (2023)) Public officers or bodies are primarily responsible for enforcement of public nuisance (eg the Attorney General, or local authorities). However, public nuisance can also give rise to tortious liability in some circumstances as it may be used by individuals who have suffered particular harm to claim damages in the civil courts. The elements of the tort of public nuisance are: unreasonable conduct that materially affects the reasonable comfort and convenience of a ‘class of His Majesty’s subjects’; and the claimant has suffered particular harm. Each of these elements is considered below. 10.5.1 Unreasonable conduct that materially affects the reasonable comfort and convenience of a ‘class of His Majesty’s subjects’ A key difference between private and public nuisance is that a public nuisance affects ‘His Majesty’s subjects’ generally, whereas a private nuisance only affects particular individuals. The number of people in a locality required to be affected by the nuisance, so as to constitute a class of the public, is a question of fact in each case. It is not necessary that every member of the class is affected, but a representative cross-​section must have been affected. Example 1 A restaurant collects a large quantity of putrefying food waste on its land near a village. The householders nearest to the restaurant suffer the most from the smell, but everyone in the village suffers too. In this case the Attorney General could take proceedings for an injunction to restrain the nuisance. The Attorney General would do this in defence of the public right, not for any individual interests. Example 2 A landowner collects a large quantity of putrefying rubbish on their land in a remote part of the countryside. Only three property owners are affected by the smell. The affected property owners would not constitute a sufficiently large class of the public to give rise to an action for public nuisa