Tort Law - Seminar 3 - Nuisance - PDF

TORT LAW Lectures – 10 hours Licence 2 – Semestre 3 – University Year 2024-2025 Eoin P. Campbell LLB Solicitor FACULTÉ DE DROIT 10 place des Archives – 69288 LYON CEDEX 02 en convention avec la Faculté d...

TORT LAW Lectures – 10 hours Licence 2 – Semestre 3 – University Year 2024-2025 Eoin P. Campbell LLB Solicitor FACULTÉ DE DROIT 10 place des Archives – 69288 LYON CEDEX 02 en convention avec la Faculté de Droit et de Science Politique de l’Université Lumière – Lyon 2  TORT LAW Seminar III The Tort of Nuisance FACULTÉ DE DROIT 10 place des Archives – 69288 LYON CEDEX 02 en convention avec la Faculté de Droit et de Science Politique de l’Université Lumière – Lyon 2  Public Nuisance and Private Nuisance Public Nuisance Public nuisance is an act “which materially affects the reasonable comfort and convenience of life of a class of *Her Majesty's subjects". Romer LJ , in Attorney General v PYA Quarries Ltd 2 QB 169 *now ‘His’ Majesty’s subjects!  Public Nuisance and Private Nuisance Public Nuisance It is primarily a crime, prosecuted by the Attorney-General. An example would be unreasonable use and obstruction of the highway.  Public Nuisance and Private Nuisance Tort of Public Nuisance It is only actionable as a tort if the claimant has suffered damage over and above other members of the public. Defences include statutory authority and act of a stranger, but not prescription. Remedies include damages and an injunction to restrain further repetition of acts of public nuisance.  Public Nuisance and Private Nuisance Both torts have been present from the time of Henry III (1 October 1207 – 16 November 1272). Each tort requires the claimant to prove that the defendant's actions caused interference, which was unreasonable , and in some situations the intention of the defendant may also be taken into account.  Public Nuisance and Private Nuisance A significant difference is that private nuisance does not allow a claimant to claim for any personal injury suffered, while public nuisance does.  Public Nuisance and Private Nuisance “Nuisance may be designated as public or private. A public nuisance is an unreasonable interference with a right common to the general public...." “[A] private nuisance is a nontrespassory invasion of another's interest in the private use and enjoyment of land. Singer …..  Public Nuisance and Private Nuisance “Unlike a public nuisance, a private nuisance threatens only one or few persons. In order for a private nuisance to be actionable, the invasion must be either (a) intentional and unreasonable or (b) unintentional but caused by negligent, reckless, or abnormally dangerous conduct... Justice Singer  Public Nuisance and Private Nuisance “If the conduct is abnormally dangerous, the court must balance the utility and benefit of the, alleged nuisance against the invasion and harm caused." Justice Singer KRAMER et al., Appellants, v. ANGEL'S PATH, L.L.C (2007) (Ohio, USA)  Public Nuisance and Private Nuisance Private Nuisance Private nuisance is a continuous, unlawful and indirect interference with the use or enjoyment of land, or of some right over or in connection with it. The main focus of our lesson will be on ‘Private Nuisance’  The Tort of Nuisance Private nuisance has received a range of criticism, with academics arguing that its concepts are poorly defined and open to judicial manipulation; Professor Conor Gearty has written that “Private nuisance has, if anything, become even more confused and confusing. Its chapter lies neglected in the standard works, little changed over the years, its modest message overwhelmed by the excitements to be found elsewhere in tort. Any sense of direction  The Tort of Nuisance In addition, it has been claimed that the tort of private nuisance has “lost its separate identity as a strict liability tort and been assimilated in all but name into the fault-based tort of negligence” (Cross (1995) p.445), and that private and public nuisance “have little in common except the accident of sharing the same name” (Gearty 1989).  Bamford v Turnley (1860) 3 B & S 62; 122 ER 25 Private nuisance was defined in Bamford v Turnley, where George Wilshere, 1st Baron Bramwell defined it as “any continuous activity or state of affairs causing a substantial and unreasonable interference with a [claimant's] land or his use or enjoyment of that land". Only those who have a legal interest in the affected land can sue ; an exception was made in Khorasandjian v Bush (1993) , where the Court of Appeal held that a woman living in her mother's house was entitled to an injunction to prevent telephone harassment despite having no legal interest in the property. In Hunter v Canary Wharf Ltd (1997) , however, the House of Lords rejected this development, arguing that to remove the need for an interest in the affected property would transform the tort of nuisance from a tort to land into a tort to the person. The liable party under private nuisance is the creator, even if he is no longer in occupation of the land or created a nuisance on somebody else's land. In Sedleigh-Denfield v O'Callaghan (1940) , it was held that the defendant was liable for a nuisance (a set of water pipes) even though he had not created it, because he had used the pipes and thereby “adopted" the nuisance. Sedleigh-Denfield v O'Callaghan (1940) The council undertook some work on the defendant’s land at the request of a neighbouring landowner. They had placed a culvert in a ditch to allow the water to drain away, however, they had negligently placed a grate in the wrong place which rendered the grate useless and the culvert became prone to blockages. Sedleigh-Denfield v O'Callaghan (1940) The defendant’s workers had cleaned the culvert periodically over a three year period to prevent blockages. However, a heavy rain storm caused a blockage and the ditch became flooded. The flood spread to neighbouring property owned by the claimant and caused substantial damage. Sedleigh-Denfield v O'Callaghan (1940) The claimant brought an action in nuisance for the damage caused. The defendant argued that he had neither consented to nor had knowledge of the existence of the culvert. Held: The defendant was liable. An occupier may be liable for the acts of a trespasser if they adopt or continue the nuisance. Sedleigh-Denfield v O'Callaghan (1940) “My Lords, in the present case I am of opinion that the Respondents both continued and adopted the nuisance. After the lapse of nearly three years they must be taken to have suffered the nuisance to continue; for they neglected to take the very simple step of placing a grid in the proper place which would have removed the danger to their neighbour’s land...” Lord Maugham Sedleigh-Denfield v O'Callaghan (1940) “...They adopted the nuisance for they continued during all that time to use the artificial contrivance of the conduit for the purpose of getting rid of water from their property without taking the proper means for rendering it safe.” Lord Maugham There is a general rule that a landlord who leases a property is not liable for nuisances created after the occupier takes control of the land. There is an exception where the lease is granted for a purpose which constitutes a nuisance, as in Tetley v Chitty (1986) , or where the nuisance is caused by their failure to repair the premises, as in Wringe v Cohen (1940). The landlord is also liable were the nuisance existed before the land was let, and he knew or ought to have known about it. Under the principle of vicarious liability, an occupier of land can also be liable for the actions of their employees; in Matania v National Provincial Bank (1936) , it was also established that they could be liable for the activities of independent contractors under certain circumstances. For there to be a claim in private nuisance, the claimant must show that the defendant's actions caused damage. This can be physical damage, as in St Helen's Smelting Co v Tipping (1865) , or discomfort and inconvenience. St Helen's Smelting Co v Tipping (1865) The claimant owned a manor house with 1300 acres of land which was situated a short distance from the defendant’s copper smelting business. He brought a nuisance action against the defendant in respect of damage caused by the smelting works to their crops, trees and foliage. There were several industrial businesses in the locality including an alkali works. The defendant argued that the use of property was reasonable given the locality and the smelting works existed before the claimant purchased the property. St Helen's Smelting Co v Tipping (1865) Held: Where there is physical damage to property, the locality principle has no relevance. It is no defence that the claimant came to the nuisance. St Helen's Smelting Co v Tipping (1865) Lord Westbury LC: “My Lords, in matters of this description it appears to me that 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. … St Helen's Smelting Co v Tipping (1865) Lord Westbury LC: “... With regard to the latter, namely, the personal inconvenience and interference with one's enjoyment, one's quiet, one's personal freedom, anything that discomposes or injuriously affects the senses or the nerves, whether that may or may not be denominated a nuisance, must undoubtedly depend greatly on the St Helen's Smelting Co v Tipping (1865) Lord Westbury LC: “... If a man lives in a town, it is necessary that he should subject himself to the consequences of those operations of trade which may be carried on in his immediate locality, which are actually necessary for trade and commerce, and also for the enjoyment of property, and for the St Helen's Smelting Co v Tipping (1865) Lord Westbury LC: “.... If a man lives in a street where there are numerous shops, and a shop is opened next door to him, which is carried on in a fair and reasonable way, he has no ground for complaint, because to himself individually there may arise much discomfort from the trade carried on in that shop. But when an occupation is carried on by one person in the neighbourhood of another, and the result of that trade, or occupation, or business, is a material injury to property, then there St Helen's Smelting Co v Tipping (1865) Lord Westbury LC: “.... I think, my Lords, that in a case of that description, the submission which is required from persons living in society to that amount of discomfort which may be necessary for the legitimate and free exercise of the trade of their neighbours, would not apply to circumstances the immediate result of which is sensible injury to the value of the property.”  The Tort of Nuisance The test for remoteness of damage in nuisance is reasonable foreseeability, as established in Cambridge Water Co Ltd v Eastern Counties Leather plc (1994) ; if the defendant was using their land unreasonably and causing a nuisance, the defendant is liable even if they used reasonable care to avoid creating a nuisance. The test is whether or not the nuisance was reasonably foreseeable; if it was, the defendant is expected to avoid it.  Interference The claimant must first show that the defendant's actions have caused an interference with their use or enjoyment of the land. These interferences are indirect, and almost always the result of continuing events rather than a one-off incident. This interference may be a physical invasion of the land, such as in Davey v Harrow Corporation (1958) , noise, as in Christie v Davey (1893) , or smells, such as in Wheeler v J J Saunders (1994).  Interference The courts have allowed cases where the interference causes emotional distress, as in Thompson-Schwab v Costaki (1956) , but have been loath to protect recreational facilities or “things of delight"; things such as the blocking of a pleasant view or a television signal are not considered a nuisance. The latter was discussed in Hunter v Canary Wharf Ltd (1997) , where the claimants argued that the blocking of their television signal by the construction of the skyscraper at One Canada Square was a nuisance. The House of Lords rejected this argument.  Interference There are rights to land known as servitudes , such as the right to light through windows or the right of support. An occupier can also be liable for an interference that is naturally arising, assuming they are aware of the interference's existence and fail to take reasonable precautions, as in Leakey v National Trust (1980).  Interference Leakey v National Trust (1980) The claimants’ land had been damaged by falls of soil and other debris from the defendant’s land known as Burrow Mump. The falls were caused entirely by nature there was no human activity involved that would have caused the fall. The defendants were aware of the risks since 1968. They had taken legal advice and were told that they would not be liable for naturally occurring slides and consequently did nothing to prevent such slides.  Interference Leakey v National Trust (1980) Following the exceptionally hot dry summer of 1976 and unusually heavy rainfall in the autumn, Mrs Leaky noticed a big crack appear in the bank above her house. She informed the National Trust and offered to pay half the cost of making it safe. Her offer was rejected. A few weeks later there was a large fall. She joined forces with other neighbours to bring an action in nuisance.  Interference Leakey v National Trust (1980) Held: The National Trust were liable following the Privy Council decision in Goldman v Hargrave (1967). 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.  Interference Leakey v National Trust (1980) Megaw LJ: “The defendant's duty is to do that which it is reasonable for him to do. The criteria of reasonableness include, in respect of a duty of this nature, the factor of what the particular man - not the average man - can be expected to do, having regard, amongst other things, where a serious expenditure of money is required to eliminate or reduce the danger, to his means. Just as, where physical effort is required to avert an immediate danger, the defendant's age and physical condition may be relevant in deciding what is reasonable, so also logic and good sense require that, where the expenditure of money is required, the defendant's capacity to find the money is relevant. …”  Interference Leakey v National Trust (1980) Megaw LJ: “... But this can only be in the way of a broad, and not a detailed, assessment; and, in arriving at a judgment on reasonableness, a similar broad assessment may be relevant in some cases as to the neighbour's capacity to protect himself from damage, whether by way of some form of barrier on his own land or by way of providing funds for expenditure on agreed works on the land of the defendant.”  Interference Servitudes The principle was extended in Holbeck Hall Hotel v Scarborough Borough Council (2000), where the Court of Appeal said that if a landowner knows or ought to know that their property may cease to support another's, they are required to take reasonable precautions or they will be liable.  Interference Holbeck Hall Hotel v Scarborough Borough Council (2000) The defendant council owned the land between the hotel and the sea. A massive land slip took place on the cliff. The lawn of the hotel disappeared into the sea and the ground under the seaward wing of the hotel had collapsed. As a result the hotel became unsafe and had to be demolished. The claimants brought an action based on the principle in Goldman v Hargrave and Leakey v National Trust. The trial judge found for the claimant and the Council appealed.  Interference Holbeck Hall Hotel v Scarborough Borough Council (2000) Held: Appeal allowed, the Council were not liable. In assessing the scope of the duty imposed under the principle in Leakey v National Trust the courts are to take into account the resources of the defendant.  The Tort of Nuisance: Interference Holbeck Hall Hotel v Scarborough Borough Council (2000) Stuart Smith LJ: “the law must take account of the fact that the occupier on whom the duty is cast has, ex hypothesi, had this hazard thrust upon him through no seeking or fault of his own. His interest, and his resources, whether physical or material, may be of a very modest character either in relation to the magnitude of the hazard, or as compared with those of his threatened neighbour. A rule which required of him in such unsought circumstances in his neighbour's interest a physical effort of which he is not capable, or an excessive expenditure of money, would be unenforceable or unjust.”  The Tort of Nuisance: Unreasonableness While there is no set definition of what is or is not unreasonable, factors that are taken into account include any "abnormal sensitivity" of the claimant, the nature of the locality where the nuisance took place, the time and duration of the interference and the conduct of the defendant. “Abnormal sensitivity" is where the claimant's damaged property is particularly sensitive to damage by the defendant's actions.  The Tort of Nuisance: Unreasonableness “Abnormal sensitivity" In Robinson v Kilvert (1889) , it was established that if the action of the defendant would not have caused damage were it not for this abnormal sensitivity, the defendant is not liable. However, if the damage was caused to abnormally sensitive property but would also have damaged non-sensitive property, the defendant is liable, as in McKinnon Industries v Walker (1951). This was because it infringed on the "right to ordinary enjoyment"; as a result, the claimant could claim for his more sensitive activities as well.  The Tort of Nuisance: Unreasonableness The locality where the interference occurred also influences whether or not it was unreasonable; in Sturges v Bridgman (1879), Thesiger LJ wrote that "what would be a nuisance in Belgrave Square [a residential area] would not necessarily be so in Bermondsey [a smelly industrial area]".  The Tort of Nuisance: Unreasonableness If an activity is out of place with the locality, it is likely to be held as unreasonable. However, the nature of areas can change over time; in Gillingham Borough Council v Medway (Chatham) Dock Co Ltd (1993) , it was held that the granting of planning permission to develop a commercial dock in an area changed that area's character, preventing the local residence from claiming in private nuisance for the disturbance the dock created.  The Tort of Nuisance: Unreasonableness The granting of planning permission does not constitute immunity from a claim in nuisance, however; in Wheeler v Saunders Ltd. (1994) the Court of Appeal said that it would be "a misuse of language to describe what has happened in the present case as a change in the character of the neighbourhood. It is a change of use of a very small piece of land... it is not a strategic planning decision affected by considerations of public interest. Unless one is prepared to accept that any planning decision authorises any nuisance which must inevitably come from it, the argument that the nuisance was authorised by planning permission in this case must fail". In situations where the defendant's activities cause physical damage, as in St Helen's Smelting Co v Tipping (1865), the locality of the activities is not a factor in deciding their unreasonableness.  The Tort of Nuisance: Unreasonableness The time and duration of the activity is also taken into account when determining unreasonableness. Activities may be reasonable at one time but not at another; in Halsey v Esso Petroleum (1961) , filling oil tankers at 10am was held to be reasonable, but the same activity undertaken at 10pm was unreasonable. 10:00am = REASONABLE 10:00pm =UNREASONABLE  The Tort of Nuisance: Unreasonableness A private nuisance is normally a "continuing state of affairs", not a one-off situation; there are exceptions, such as in De Keyser's Royal Hotel v Spicer (1914) , where pile driving at night was considered a nuisance. In such situations, the normal remedy is to grant an injunction limiting the time of the activity.  The Tort of Nuisance: Unreasonableness Another exception was found in British Celanese v AH Hunt Ltd (1969) , where an electronics company stored foil strips on their property which blew onto adjoining land, causing the power supply to a nearby yarn manufacturers to be cut off. A similar incident had occurred 3 years earlier and the defendants had been warned to store their strips properly; it was held that even though the power cut was a one-off event, the method of storing the foil strips constituted a continuing state of affairs, and the defendants were liable.  The Tort of Nuisance: Unreasonableness Conduct of the defendant In some circumstances, the conduct of the defendant can be a factor in determining the unreasonableness of their interference. In this situation the motives of the defendant and the reasonableness of their conduct are the factors used to determine the unreasonableness of their actions. This is one of the few exceptions to the rule that malice is not relevant in tort law. In Christie v Davey (1893) , the defendant was deliberately creating a noise to frustrate the claimants; based on this, it was held that their actions were malicious, unreasonable, and amounted to a nuisance.  The Tort of Nuisance: Unreasonableness Conduct of the defendant Christie v Davey (1893) The claimant was a music teacher. She gave private lessons at her home and her family also enjoyed playing music. She lived in a semi-detached house which adjoined the defendant’s property. The defendant had complained of the noise on many occasions to no avail. He took to banging on the walls and beating trays and shouting in retaliation.  The Tort of Nuisance: Unreasonableness Conduct of the defendant Christie v Davey (1893) Held: The defendant’s actions were motivated by malice and therefore did constitute a nuisance. An injunction was granted to restrain his actions.  The Tort of Nuisance: Defences There are several defences to nuisance claims; in Nichols v Marsland (1876 ) , for example, “Act of God" was accepted as a defence. The defendant diverted a natural stream on his land to create ornamental lakes. Exceptionally heavy rain caused the artificial lakes and waterways to be flooded and damage adjoining land. The defendant was held not liable under Rylands v Fletcher (1868) (more on this case later!) as the cause of the flood was an “Act of God”.  The Tort of Nuisance: Defences Nichols v Marsland (1876) Mellish LJ: “Now the jury have distinctly found, not only that there was no negligence in the construction or the maintenance of the reservoirs, but that the flood was so great that it could not reasonably have been anticipated, although, if it had been anticipated, the effect might have been prevented; and this seems to us in substance a finding that the escape of the water was owing to the act of God. …”  The Tort of Nuisance: Defences Nichols v Marsland (1876) Mellish LJ: “ … However great the flood had been, if it had not been greater than floods that had happened before and might be expected to occur again, the defendant might not have made out that she was free from fault; but we think she ought not to be held liable because she did not prevent the effect of an extraordinary act of nature, which she could not anticipate.” The Tort of Nuisance: Defences What is an « Act of God »?  Defences What is an « Act of God »? In England and Wales an act of God is an unforeseeable natural phenomenon. Explained by Lord Hobhouse in Transco plc v Stockport Metropolitan Borough Council (2003).  Defences What is an « Act of God »? Described as an event; (i) which involve no human agency (ii) which is not realistically possible to guard against (iii) which is due directly and exclusively to natural causes and (iv) which could not have been prevented by any amount of foresight, plans, and care.  Defences “20 years prescription", is a defence which is valid for private nuisance but not public. If a private nuisance continues for 20 years, it becomes legal by prescription, assuming the defendant can show that it has been continuous and the claimant has been aware of it. A limitation is that the 20 years is from when the activity became a nuisance, not from when the activity started.  Defences In Sturges v Bridgman (1879), the claimant, a doctor, lived next to a "confectionery business". Vibrations and noises coming from this business continued for over 20 years without causing the doctor nuisance, and the doctor only complained after building a consulting room in his garden. It was held that the actual nuisance only started when the consulting room was built and the activity began to affect the doctor, not when the activity started.  Defences Allen v Gulf Oil Refining Ltd (1980) Another defence is statutory authority, when an activity is authorised by a piece of legislation; this applies to both public and private nuisance. This applies even when the activity is carried out not directly in line with the statute, but intra vires. In Allen v Gulf Oil Refining Ltd (1980), the defendant was authorised to build an oil refinery by an Act of Parliament. The Act gave no express authority to operate it, and after it came into operation the claimant argued that it caused a nuisance through the smell and noise.  Defences Allen v Gulf Oil Refining Ltd (1980) The House of Lords held that it had statutory authority to operate the refinery, saying “Parliament can hardly be supposed to have intended the refinery to be nothing more than a visual adornment to the landscape in an area of natural beauty". The statutory authority defence has recently been subject to legislative consideration in the Planning Act 2008 , which expands the defence to over 14 types of infrastructure development.  Remedies There are three possible remedies where a claimant is found to have committed a nuisance: Injunctions Damages Abatement  Remedies Injunctions are the main remedy, and consist of an order to stop the activity causing the nuisance. They may be “perpetual", completely forbidding the activity, or “partial", for example limiting when the activity can take place.  Remedies Damages are a monetary sum paid by the defendant for the claimant's loss of enjoyment or any physical damage suffered; they may be paid for things as varied as loss of sleep or any loss of comfort caused by noise or smells.  Remedies Abatement is a remedy that allows the claimant to directly end the nuisance, such as trimming back a protruding hedge. If the abatement requires the claimant stepping onto the defendant's land, he must give notice or risk becoming a trespasser.  The Rule in Rylands v Fletcher Rylands v Fletcher UKHL 1  Rylands v Fletcher UKHL 1 Rylands employed contractors to build a reservoir, playing no active role in its construction. When the contractors discovered a series of old coal shafts improperly filled with debris (waste), they chose to continue work rather than properly blocking them up. The result was that on 11 December 1860, shortly after being filled for the first time, Rylands's reservoir burst and flooded a neighbouring mine, run by Fletcher, causing £937 worth of damage, equivalent to £102,768 in 2015 terms!!!!!  Rylands v Fletcher UKHL 1 Fletcher brought a claim under negligence, through which the case eventually went to the Exchequer of Pleas. The majority ruled in favour of Rylands; however, Bramwell B, dissenting, argued that the claimant had the right to enjoy his land free of interference from water, and that as a result the defendant was guilty of trespass and the commissioning of a nuisance.  Rylands v Fletcher UKHL 1 Bramwell's argument was affirmed, both by the Court of Exchequer Chamber and the House of Lords, leading to the development of the….. “Rule in Rylands v Fletcher ”  Rylands v Fletcher UKHL 1 The Rule in Rylands v Fletcher “the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape".  Rylands v Fletcher UKHL 1 The Rule in Rylands v Fletcher No right "to enjoy property" exists in UK black-letter law, and it is this decision upon which stare decisis is built in the area.  Rylands v Fletcher UKHL 1 The Rule in Rylands v Fletcher This doctrine was further developed by English courts, and made an immediate impact on the law. Prior to Rylands, English courts had not based their decisions in similar cases on strict liability, and had focused on the intention behind the actions rather than the nature of the actions themselves.  Rylands v Fletcher UKHL 1 The Rule in Rylands v Fletcher In contrast, Rylands imposed strict liability on those found detrimental in such a fashion without having to prove a duty of care or negligence, which brought the law into line with that relating to public reservoirs and marked a significant doctrinal shift. Academics have criticised it, however, both for the economic damage such a doctrine could cause and for its limited applicability.  Rylands v Fletcher UKHL 1 The Rule in Rylands v Fletcher The tort of Rylands v Fletcher has been disclaimed in various jurisdictions, including Scotland, where it was described as "a heresy that ought to be extirpated", and Australia, where the High Court chose to destroy the doctrine in Burnie Port Authority v General Jones Pty Ltd. (1994)  Rylands v Fletcher UKHL 1 The Rule in Rylands v Fletcher Within England and Wales, however, Rylands remains valid law, although the decisions in Cambridge Water Co Ltd v Eastern Counties Leather plc and Transco plc v Stockport Metropolitan Borough Council make it clear that it is no longer an independent tort, but instead a sub-tort of nuisance.