Tort – Public Nuisance

Public nuisance is the act of tampering with the right of the public to enjoy wholly or in part the rights over their respective property or land. Like private nuisance it can be committed by either doing an act which a reasonable man would not do or failing to do something that a reasonable man, under the given circumstances, would do. While private nuisance deals with the rights of the individual to enjoy the benefits of his or her property, public nuisance deals with the right of the public to enjoy the rights or benefits of their property.

In Benjamin v Storr (1874) the defendant had horses and carriages stationed outside the plaintiff’s coffeehouse all day long and as a result slowed down the movement of traffic. He was guilty of obstructing a public highway and his actions were deemed to be a public nuisance.

In addition to that his horses and carriages blocked the lights to the plaintiff’s coffeehouse and the smell of the horses put a lot of his customers off. The plaintiff sued and the court held that the plaintiff was entitled to claim because he had suffered additional damage that others had not.

Therefore, with public nuisance, despite the defendant being found guilty of committing the offence, individuals that have suffered further damage or damage more than others are also entitled to claim.

In order to be successful in an action for public nuisance, the aggrieved parties must have a proprietary interest in the property as per Tate & Lyle v Greater London Council (1983) and Hunter v Canary Wharf (1998).

In Tate & Lyle v Greater London Council (1983) the plaintiffs were owners of a sugar factory located close to a jetty and used boats and barges to transport the sugar that they produced to larger ships. At the time, the defendants were dredging the water for the purposes of constructing a jetty that would allow larger boats to dock.

The dredging churned up the dirt and grime from the river bed and the water subsequently became too dirty for the plaintiffs to use, possibly because what was churned up from the waterbeds made it unsafe for small boats and barges. The plaintiffs sued.

The court held that in order to be successful in a nuisance claim the plaintiff must have some proprietary interest in the property and because the plaintiffs didn’t, their claim failed.

In Hunter v Canary Wharf (1998), there were a large number of claims made against the developers of Canary Wharf Towers by residents living in the Isle of Dogs and the claim was based on the fact that the erection of the towers interfered with the television reception of those who lived in the Isle of Dogs. Additional claims were also made against London Docklands Development Corporation for excessive dust and other pollutants that resulted from the erection of the towers. A large number of the claimants did not have any proprietary interest. It was held that in order to be successful the plaintiffs must have a proprietary interest in the property.

In Attorney-General v PYA Quarries Ltd. (1957) the defendants were quarry blasting and the resultant noise and dust particles that were released into the air were a source of discomfort to those who lived in the area or the neighborhood. In addition to that it also aggravated the risk of the plaintiffs falling victim to ailments associated to breathing polluted air like asthma.

The plaintiffs sought redress in court and the court held that the defendants’ actions were a public nuisance. Public nuisance was interpreted as an act which “materially affects the reasonable comfort and convenience of a class of her Majesty’s subjects.”

The act of nuisance must be an overt act and the act of sending letters, pamphlets and newsletters etc. will not be deemed or categorized as an act that constitutes public nuisance.

In R v Rimmington (2005), the facts were somewhat similar to Hussain v Lancaster City Council (1999), the defendant sent some 538 racially discriminatory letters to the residents of a neighborhood. The court in line with the decision in Hussain v Lancaster City Council (1999) decided that the act of sending the letters, despite the content, was not an act of public nuisance.

If the courts were to consider such an act i.e. the act of sending out numerous letters, as an act of nuisance, it could have an impact on marketing and promotional materials that companies normally send out including brochures and catalogues. While the content is dissimilar, the mode or method of reaching out to the public is the same.

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Tort – Trespass

Trespass to land occurs when one person who does not have either implied or express permission enters the land of another. It is actionable per se and the proprietor of the land can turn to the court for assistance. Trespass to land can occur in various ways including mistakenly entering the property of another. In Basely v Clarkson (1681) the defendant while mowing his lawn accidentally entered the adjoining property and the plaintiff brought an action against the defendant in court. The court held that the defendant’s actions did indeed constitute trespass.

However, if the defendant was brought onto the land involuntarily i.e. without his or her consent than the person will not be deemed to be guilty of trespass but those who brought the plaintiff onto the land shall be deemed to be trespassers.

In Smith v Stone (1647) the defendant was carried onto the land by others and left there. The plaintiff, the lawful owner of the land brought an action in trespass and the courts decided that the defendant was not guilty. It was the people who had brought the defendant to the land against his or her will that were guilty.

Trespass also extends to placing an object, a chattel or an item on someone else’s land for example a signage without obtaining prior approval or consent. In Holmes v Wilson (1839) the defendants erected buttresses on the plaintiff’s land without obtaining prior permission. The plaintiff sued and was successful. The defendants were ordered to pay damages to the plaintiff.

However, despite being found guilty of trespass the defendants failed to remove the stone supports and the plaintiff sued again and was successful again. The court held that the defendants would be liable for each day the supports remained on the plaintiff’s land.

Similarly, in Konskier v Goodman ltd (1928) the defendants were builders who were employed to pull down the second storey of a house. They obtained the necessary permission and consent including that of the adjoining house owner because the work that was carried out would likely cause damage to the adjoining property and the defendants agreed to make good any damage to the house. As agreed the defendants made good on their promise but failed to clear up the rubbish from the construction works that was left in front of the adjoining house. The plaintiff, the owner of the adjoining house, brought an action in court.

The court in line with the decision in Smith v Stone (1647) decided that the defendants were guilty of trespass and that damages would accrue every day for as long as the rubbish remained in front of the plaintiff’s house.

Trespass to land can not only occur on the surface but also includes actions done below the surface like mining or excavation which extends into another’s land. In Bulli Coal Mining Co. v Osborne (1899) the defendants were miners and while excavating or tunneling underground dug through to the plaintiffs’ land and the aggrieved plaintiff sought redress in court. It was held that trespass also extents to any activity done below the surface of the land without first acquiring either implied or express permission from the legal owners of the land.

Trespass is not limited to intruding on someone else’s land and it also includes encroaching into someone else’s airspace. In Kelsen v Imperial Tobacco (1957) the defendant had erected a sign that protruded 4 inches into the plaintiff’s airspace and the plaintiff brought an action in court seeking an injunction to prevent the defendant from intruding into the plaintiff’s airspace. The court granted the injunction on the basis that the sign tampered or fettered with the plaintiff’s proprietary interest.

While in may seem trivial, intruding into someone’s airspace is in reality quite serious. Probably the most well-known incidence with regards to one party entering into the air space of another without permission, was the downing of Korean Airline Flight 007 which intruded on Russian airspace just west of Sakhalin Island.

Trespass also extends to owners of animals. Owners must take reasonable steps to ensure that their animals remain on their premises. In League Against Cruel Sports v Scott (1985) the defendant was an owner of foxhounds and his pets strayed on to a neighboring property belonging to the plaintiff and the plaintiff sued.

The court held that owners of animals were under a duty to ensure that their animals remained on their property and in the event that the animals strayed onto another property or an adjoining property than the owner will be guilty of trespass. The plaintiff was successful.

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Tort-Private Nuisance VII

Verbal abuse and other threatening or intimidating gestures are not actionable in nuisance because these acts fall outside the scope of nuisance.

In Hussain v Lancaster City Council (1999) the plaintiffs owned a shop and a residence in a housing estate belonging to the defendants, the council. The plaintiffs suffered various types of abuses, mostly verbal, and the plaintiffs made numerous complaints to the council.

The council in all fairness sent out letters threatening to evict the perpetrators but that did not stop the abuse and the council was not prepared to carry out its threat of eviction. The plaintiffs turned to the court.

The court decided, despite the fact that the plaintiffs had a proprietary interest in the property it was outside the scope of nuisance.

A claim in nuisance will also fail if it was beyond the resources of the defendant to rectify the damage that was caused especially if the damage was caused by a natural calamity. In Holbeck Hall Hotel Limited v Scarborough Borough Council (2000) the plaintiffs were owners of a four-star hotel that was located close to the sea and next to land owned by the council, the defendants, that stretched all the way to the coast. There was a massive landslide on the defendants’ land that was beyond rectification and as a consequence the hotel that was owned by the plaintiffs was declared unsafe and had to be demolished. The plaintiffs sued.

The court held that despite the decisions in Goldman v Hargrave (1967) and Leakey & Ors v National Trust (1980) the plaintiffs were unable to claim because it would place a strain on the council’s resources.

In Leakey & Ors v National Trust (1980) the defendants adduced evidence to show that the damage to the adjoining properties occurred naturally but the facts in Leakey may be distinguished from the facts in Holbeck in that, in the former it was possible to rectify the problem prior to it causing serious property damage to the plaintiff’s property. It was the decision of the trust not to do so and not to take up the plaintiff’s offer to pay for part of the costs.

In Jones Ltd v Portsmouth City Council (2002) the plaintiffs owned a business and there were trees planted along the pavement. The roots of the tree subsequently caused damage to the plaintiffs’ premises and the plaintiff brought an action against the council who were responsible for the maintenance of the area outside the plaintiffs’ business premises.

The court in line with the decisions in Goldman v Hargrave (1967) and Leakey & Ors v National Trust (1980) found for the plaintiffs and held that the council owed the plaintiff a duty of care and had breached that duty of care by allowing the roots of the trees that were planted along the pavement to grow to the extent that the roots caused damage to the plaintiffs’ property.

In Dennis v Ministry of Defense (2003) we examine the scope of nuisance in lieu of public interest. The plaintiff lived close to an air force base and found that the noise made by air force jets that were taking off and landing to be a disturbance. The plaintiff brought an action in court seeking an injunction to prevent the disturbance.

The court held that while it was foreseeable that the noise made by the air force jets would be a nuisance, public interests outweighed private interests and the court refused to grant an injunction. The plaintiff was unsuccessful.

Similarly, in Network Rail v Morris (2004) the plaintiffs owned a recording studio which was situated close to a railway station. Initially there was no disturbance but the railway authorities later installed a new signaling system and that interfered with the electronic equipment especially some of the instruments that the defendants used in their studio. The defendants brought the matter before the courts.

It was held that despite the fact that the signaling system interfered with the equipment that the defendants used in their studios, public interests outweighed the defendants’ proprietary interests and the defendants were unsuccessful in their claim.

With nuisance, as in other areas of tort, there is normally a willingness to allow a lesser evil for a greater good especially if that greater good is going to be beneficial to the residents of a locality or a community.

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Tort-Private nuisance VI

When deciding whether a nuisance claim would be successful or otherwise the court will take into account the remoteness of damage. The test to determine whether damage is foreseeable is the same test that is used in negligence i.e. the test in the Wagon Mound (1) (1961).

In the Wagon Mound (1) (1961) the defendant’s vessel the Wagon Mound was docked in a wharf in Sydney and unknown to the defendant the boat leaked oil and the resulting fire caused damage to not only the defendant’s vessel but also to the wharf and to 2 other vessels. The court had to determine the scope of the defendant’s liability. It was held that the defendant was only liable for the damages that he could foresee.

In Cambridge Water v Eastern Counties Leather plc (1994) the defendants were owners of a tanning factory i.e. their business was the business of converting animal hides and skins into leather which is then used to make consumer items like wallets, belts etc. The conversion process required the use of various chemicals and some of the chemicals seeped into the ground and made its way to boreholes that supplied water to consumers. The plaintiffs sued.

The court rejected their claim basing its decision on the fact that it was not reasonably foreseeable that spillage from the factory would seep into the ground and contaminate the boreholes.

It is worth comparing the decision in Cambridge Water v Eastern Counties Leather plc (1994) with the decision in Crown River Cruises v Kimbolton Fireworks (1996).

In Crown River Cruises, the defendants were organizers of a fireworks show and some of the debris, from the show, landed on a barge belonging to the plaintiff and subsequently set the barge on fire. The plaintiff sued and the court in line with the decisions in Goldman v Hargrave (1967) and Leakey & Ors v National Trust (1980) held that the defendants were liable.

Where two parties have an interest in the same land, the normal rules with regards to nuisance will apply. However, if there is a conflict between public interest and private interest, private interest must give way to public interest.

In Wheeler v JJ Saunders (1995) both the plaintiff and the defendant had an interest in the land and were at one stage working together before they had fallen out.

The plaintiff who had a smaller interest in the land had a farm house and some holiday cottages that he rented out to suitable tenants.

The defendant had a pig farm and a couple of years after the plaintiff and the defendant had fallen out the defendant decided to expand his business.

The farm grew larger and moved closer to the holiday cottages and the plaintiff brought an action on the grounds that the resulting smell and the animal discharge from the farm was a nuisance to the holiday makers who rented his cottages.

In line with the decision in Bone v Seale (1975) the plaintiff was successful. Both parties had a proprietary interest in the land and it was a matter of one proprietary interest against another.

In Hunter v Canary Wharf (1998), the case that overruled Khorasandjian v Bush (1993), there were a large number of claims made against the developers of Canary Wharf Towers by residents living in the Isle of Dogs and the claim was based on the fact that the erection of the towers interfered with television reception of those who lived in the Isle of Dogs. Additional claims were also made against London Docklands Development Corporation for excessive dust and other pollutants that resulted from the erection of the towers. A large number of the claimants did not have any proprietary interest in the property.

The court overruled Khorasandjian and decided that in order for the claimants to be successful they must have a proprietary interest in the property. The decision however is most likely based on public policy and public policy supplants individual needs.

Before an action in nuisance can be successful, the action must first be deemed reasonable. In London Borough of Southwark v Mills and others (1998) the defendants were tenants in a block of council flats. The defendants brought an action against the council alleging that the lack of soundproofing was a source of disturbance that prevented them from enjoying the benefits of the property that they were occupying. The plaintiffs sued. They were unsuccessful.

The court held that any action in nuisance must be reasonable and it was not reasonable to have the council soundproof its buildings.

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Tort-Private nuisance V

In Tate & Lyle v Greater London Council (1983) the plaintiffs were owners of a sugar factory located close to a jetty and used boats and barges to transport the sugar that they produced to larger ships. At the time, the defendants were dredging the water for the purposes of constructing a jetty that would allow larger boats to dock.

The dredging churned up the dirt and grime from the river bed and the water subsequently became too dirty for the plaintiffs to use, possibly because what was churned up from the waterbeds made it unsafe for small boats and barges. The plaintiffs sued.

The court in line with the decision in Malone v Laskey (1907) held that in order to be successful in a nuisance claim the plaintiff must have some proprietary interest in the property and because the plaintiffs didn’t their claim failed.

The exception to the rule occurred in Khorasandjian v Bush (1993). The decision in Khorasandjian v Bush (1993) was later overruled in the case of Hunter v Canary Wharf (1998) but it is still worth looking at the facts.

The plaintiff who had successfully obtained an injunction against the defendant for harassment sought to bring an action against him in nuisance for repeatedly verbally abusing her or making threatening gestures whenever he saw her.

The defendant argued that because the plaintiff did not have a proprietary interest she could not bring an action in nuisance. The judge found for the plaintiff, in that, in certain situations, given the gravity of the matter, the plaintiff doesn’t need to have an interest in the property to bring an action in nuisance.

Preventing others from carrying out their duties could also be interpreted as nuisance especially if they are paid employees of a company or an organization. In Thomas v National Union of Mineworkers (1986) workers belonging to a union decided to picket to air their grievances.

However not all the workers were in favor of union action, in many organizations today, while employees are encouraged to be a member of an union because the function of the union is to protect the rights of the workers especially in instances of unfair dismissals or racial or gender discrimination (this is one of the reasons why unions are generally regarded as the left), there are some workers who can, depending on the laws or bylaws decide not to be a union member or can, even if they are unionized, choose not to take part in union action.

The defendants tried to dissuade those who had decided against union action or had chosen not to participate in the strike from entering their work premises or from continuing to work and the plaintiffs turned to the court for help. The court found in favor of the plaintiffs and decided that preventing others from carrying on with their normal occupation was a nuisance.

Businesses set up close to residential areas, have a duty to ensure that their business does not interfere or tamper with the rights of others to enjoy their property. In Tetley v Chitty (1986) the council had granted the defendants a license to set up a go cart track close to a residential area. Go-karts though they are fun are fairly noisy affairs and the noise was a disturbance to some of the residents who lived close to the track. The residents, the plaintiffs brought an action against the council and the court decided in favor of the plaintiffs.

Where consent is given to develop property with the intention of improving the living standards in an area or the living conditions in a locality then the act is not an act of nuisance.

In Gillingham Borough Council v Medway Dock (1993) the defendants had obtained permission to turn a disused dock into a commercially viable operation and the work that was to be done required the ferrying of material and equipment that were needed to make the structural changes that were required.

The materials were not only transported during the day but were also transported at night and the noise made by heavy lorries and other vehicles that transported the material was a disturbance to the local residents. The residents brought the matter before the council and the council approached the court to obtain an injunction to stop the project from continuing.

The court held that despite the fact that planning permission is not a license to commit nuisance however if the change can alter the character of a neighborhood it may render activities that were once actionable in nuisance as non-actionable or innocent.

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Tort-private nuisance IV

Owners of fields and pitches have a duty to ensure that no disturbance is caused to neighbors or owners of adjoining lands and property. In Miller v Jackson (1977) the plaintiff purchased a home and the land her house was built on was next to a cricket pitch.

The balls that were hit by the batsmen often cleared the fence and landed on the plaintiff’s front lawn. Such was the nature of the game that batsmen were required to hit the ball as hard and as far as they could and the balls caused damage to the items and chattels that she had in her front yard.

The plaintiff complained and the cricket club erected a higher fence, and the number of balls that cleared the fence were somewhat reduced but there were still occasions when batsmen would hit the ball over the fence and the balls would land on the plaintiff’s lawn. Eventually, the plaintiff sought redress in court.

The court held that the plaintiff had the right to enjoy her property and the acts of the players of hitting the ball over the fence tampered or interfered with that right and as a result the actions of the batsmen constituted nuisance. The plaintiff was successful.

Owners of land or occupiers of property also have to take reasonable care to ensure that waste or debris from their land did not make its way to adjoining properties. In Goldman v Hargrave (1967) a tree on the defendant’s land was struck by lightning during a storm and subsequently caught fire. The next morning the defendant had the tree felled and sawn in half. Unknown to him however the tree was still smoldering and due to the extensive heat on the particular day, the tree once again caught fire and the fire spread to the plaintiff’s property, causing serious damage to the property. The plaintiff sued.

The court held that owners or occupiers of property had a duty to ensure that any waste or debris on their property did not make its way to adjoining properties. The plaintiff was successful.

The decision of the court in Goldman v Hargrave (1967) was reaffirmed in Leakey & Ors v National Trust (1980). Soil and debris from the defendants’ property caused damage to adjoining properties and one of the property owners, the plaintiff, contacted the defendants to have the problem remedied or rectified and offered to pay for part of the costs. The defendants rejected the plaintiff’s offer, and the problem worsened and eventually caused extensive damage to the plaintiff’s property. The plaintiff sued.

During the trial, the defendants adduced evidence to point out that the burrow mumps that were the source of the debris occurred naturally and hence they should not be liable. The court rejected the defendants’ argument and in line with the decision in Goldman v Hargrave (1967) found that the defendants were responsible for any damage caused to adjoining properties that occurred as a result of owners or occupiers failing to address any irregularities, natural or otherwise, on their land.

Though in order to be successful in an action alleging nuisance, the act must be repetitive and must be done over a period of time, yearly events for example the lighting of fireworks or the lighting of a bonfire on Guy Fawkes Day maybe be construed to be acts of nuisance if they become more frequent during the year.

In Kennaway v Thompson (1981) the plaintiff moved into her father’s house which was close to the starting point of the annual races of a motor boat racing club. The races grew more frequent and were eventually no longer an annual event but rather an event that was conducted regularly throughout the year. The plaintiff sought redress in court.

The court found for the plaintiff and decided that the increasingly frequent motor races were indeed a nuisance and that the races tampered with the plaintiff’s right to enjoy her property.

Owners of property have a duty to ensure that their property is not taken over by squatters and in the event that it is, the owners would be responsible for any damage or discomfort caused to owners of adjoining properties by the squatters.

In Page Motors v Epsom Borough Council (1982) the plaintiff ran a second-hand car business in his yard which adjoined vacant land that belonged to the defendant. The land was left vacant for a period of time and was subsequently occupied by squatters. The resulting noise and other actions of the squatters caused the plaintiff a great deal of discomfort and the plaintiff brought an action against the defendant in court.

The court held that the council was liable and had a responsibility to ensure that any occupant on its land did not become a nuisance to owners of adjoining properties.

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Tort-Private nuisance III

If an act undertaken to prevent discomfort to the owners of adjoining lands had been successful in the past but because of a sudden change in conditions it was found that the measures that were implemented were not adequate and caused discomfort or displeasure to the owner of an adjoining property, the failure to prevent the discomfort may be deemed or regarded as nuisance.

In Sedleigh-Denfield v O’Callaghan (1940) the council adopted measures to drain excessive water and to prevent flooding to adjoining lands. The work was carried on periodically over three years and was successful. However, there was a sudden downpour and the excess water that resulted from the heavy rain caused the adjoining property to be flooded. The plaintiff, the aggrieved neighbor sued. It was held that despite the measures that were taken in the past the defendants were still liable because their failure had caused discomfort to the plaintiff.

Business owners, regardless of the nature of the business they’re in, have a duty to ensure that that the fumes and particles that are released from their business premises do not cause discomfort to adjoining land owners.

In McKinnon Industries v Walker (1951) the defendant was an iron and steel manufacturer whose manufacturing facility was located on the adjoining property or the property next to the plaintiff’s.

The plaintiff had a nursery which included rare orchids and as a result of being exposed to the fumes that were released from the defendants factory the orchids wilted and would not flower.

In addition to that the dust particles that were released from the factory also clung tenaciously to the hedges and shrubs and deposited themselves on the plants and caused many of the plants to wither and die.

The plaintiff brought an action in court and the court in line with the decision in Bliss and Hall (1838) and Adams v Ursell (1913) found for the plaintiff and decided that the fumes and other particles that were released from the defendants’ factory were a nuisance.

The act that constitutes nuisance does not always need to be noisy. The very fact that it is visible is sufficient for the plaintiff to seek redress in court and the court, if it deems it reasonable that such acts should be done with discretion and not in plain view of the plaintiff, will grant an injunction.

In Thompson-Schwab v Costaki (1956) the defendant converted his premises to a brothel the plaintiff was able to see all the clients that entered and left the brothel. The plaintiff felt uneasy and brought an action in court. The court found for the plaintiff and decided that the defendants’ actions constituted nuisance.

In addition to noise, fumes and odors, toxic substances that emanate from the land and permeate the surroundings are also regarded as nuisance and the land owner has to take reasonable care to ensure that such substances do not cause any discomfort to his or her neighbors.

In Halsey v Esso Petroleum (1961) acid flakes from the defendants’ property damaged a car belonging to the plaintiff and the disgruntled plaintiff brought an action in court. The court found for the plaintiff and held that the defendant owed a duty of care to ensure that any substances that escaped from his or her property did not cause any injury to others or cause damage to the adjoining properties.

Property owners must also take care to ensure that materials that belong on their property do not make their way to an adjoining property and cause damage or discomfort to owners of the adjoining property.

In British Celanese v Hunt Ltd (1969) a metal foil from the defendants’ premises was blown by the wind to an electric substation resulting in a power outage that caused a blackout in a nearby industrial estate.

That was the second time it had happened and the plaintiffs sought a remedy in court. The court held that that such occurrence were a nuisance to others and found for the plaintiff.

In Bone v Seale (1975) the defendants operated a pig farm. The business was a success and the defendants expanded their operations towards the plaintiff’s property. Pigs however were not the cleanest of animals and the resulting smell caused discomfort to the plaintiff. The plaintiff turned to the courts for assistance. The court in line with the decisions in Bliss and Hall (1838) and Adams v Ursell (1913) held that the defendant had a duty to ensure that no foul odors escaped from their property and caused distress to the plaintiff.

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Tort – Private Nuisance II

Actions that once did not constitute nuisance can later constitute nuisance. The act of operating noisy machinery for example may have continued for years without there being any complaints because the adjoining houses were vacant but once a lawful occupier moves into one of the houses, he or she can seek redress in court if the actions of his or her neighbor prevent him or her from enjoying its benefits.

In Sturges v Bridgman (1879) the defendant owned and operated a bakery and the machinery that he used to grind the flour had been noisy for 20 years without a single complaint.

However, a new neighbor moved in, a medical practitioner who ran his practice from his home and he brought an action against his neighbors claiming that the noise that resulted from the bakery was disturbing his patients.

The defendants contended that they had been using the machinery for years without there being any complaints and did not see any reason to stop using it. The plaintiff was successful. Situations and circumstances change and what did not constitute nuisance 20 years ago may be treated as nuisance today.

Likewise, where the act is done also plays a part in determining whether an act is deemed to be a nuisance or otherwise. Let’s say for example, the defendant is particularly fond of chopping wood and he’d done so in his backyard for 20 years and no one has once complained about it. To the contrary people around him have complimented him for maintaining a healthy lifestyle. However, if the same defendant was to start chopping wood in the middle of High Street Kensington, he would most likely be found to be a nuisance.

If the act is done by the occupier on his or her property and the act does not interrupt the plaintiff’s right to enjoy his or her property than the act would not constitute nuisance. In Bradford Corp v Pickles (1895) the underground streams that ran through the defendant’s property were channeled by the plaintiff for his waterworks. The defendant later tried to stop the water from going to the plaintiff’s property by draining the streams. The plaintiff sued. The court held that the defendant was not liable. What the defendant does on his own property, as long as it does not interfere with the plaintiff’s right to enjoy his property, cannot be deemed as nuisance.

It’s worth comparing the decision in Bradford Corp v Pickles (1895) with the decision in the later case of Adams v Ursell (1913). Whether an act constitutes nuisance or otherwise normally depends on the facts and at times it is impossible to generalize.

It is however safe to say that as long as the act does not interfere with the right of another to enjoy his or her property than the act will not be interpreted as an act of nuisance.

In Bliss and Hall (1838) the occupiers of an adjoining property found the fumes from a candle making factory located next to their property to be offensive and accordingly brought an action in court. The court found for the plaintiff on the grounds that it was reasonable to say that the fumes from a candle making factory may cause some discomfort to the neighbors.

The smell does not necessarily need to be rancid or putrid. If a reasonable person would consider it a disturbance to his or her right to enjoy his or her property that the chances are that the act would constitute nuisance.

If an act is done with malice to deprive the plaintiff of earnings or profits than the act would constitute nuisance. In Hollywood Silver Fox Farm v Emmett (1936) the plaintiff bred silver foxes for its fur and the defendant who occupied an adjoining property fired his gun close to a den in an attempt to stop the foxes in captivity from reproducing.

The plaintiff sued and the defendant was held to be liable. The court in line with the decision in Christie v Davey (1893) found that if an act is done with malice, then the act, even if it is done on the defendant’s property may constitute nuisance.

In order for a plaintiff to claim for nuisance he or she must have some proprietary interest in the property. In Malone v Laskey (1907) the plaintiff was injured when the noise made by machinery in an adjoining property caused the cistern in a toilet to fall on her. The court held that because her husband did not have a proprietary interest in the property, she was unable to claim.

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Tort – Private nuisance I

There are two types of nuisance in English Law: –

  • Private nuisance and
  • Public nuisance

Private Nuisance

Private nuisance is defined as an interference wholly or in part with the right of one person to enjoy the rights over his or her land or property by another person. The element of foreseeability and damage, the prerequisites to bringing an action or a claim in tort, must be satisfied.

In other words, it must be foreseeable that the interference will cause some sort of discomfort or displeasure to the user and that discomfort has resulted in some type of damage.

In instances of property damage, the damage must be the type of damage that ordinarily results from the act and is not peculiar to the item or the chattel.

In Robinson v Kilvert (1889) the defendant and the plaintiff were both in business. The defendant who used the basement to produce paper boxes rented out the first floor of his premises to the plaintiff. The plaintiff used the premises he had rented from the defendant to store paper.

The defendant’s business required an unusually dry place and the basement was accordingly kept continuously dry. This can easily be done by keeping the heater on – gas heaters especially result in a warm atmosphere. The heat damaged the paper that the plaintiff had stored and the plaintiff sued.

During the trial, it was discovered that the paper that the plaintiff had stored was of an unusual type and the heat that was released from the basement would not have caused damage to any other type of paper with the exception of the kind or type that was stored by the plaintiff.

The court held that the defendant was not liable because the type of paper was not that which is usually stored or used. The defendant or any other person for that matter can be expected to foresee damage to normal paper but the chances or possibilities are slim that they can foresee damage to the rare or special type of paper that was stored by the defendant.

No claim would arise if it was reasonable to act in the manner that the defendant did. In Harrison v Southwark and Vauxhall Water (1891) the defendants carried out construction works during the day and the work was only temporary. The plaintiff brought an action against the defendant for nuisance but it was held that the work that was carried out by the defendant, despite the discomfort that was caused to the plaintiff, was something that happened in the course of day to day living.

Local councils and other authorities have a duty, normally imposed by law, and without doubt they may while ensuring that they comply with the duties that are imposed on them cause some sort of discomfort to the plaintiff or others like him but as long as that duty is complied with in a reasonable manner or in a manner that is deemed fitting or appropriate than the work that is carried out by the council or the authority will not be construed as nuisance.

If the act was done with malice or was done to aggravate the defendant than it would be interpreted as nuisance. In Christie v Davey (1893) the plaintiff was giving music lessons, in his house, which is normally something that is done during the normal hours of the day and the defendant his neighbor tried to put a stop to it by banging on the wall and beating on tin pans. The plaintiff sought a remedy in court and the court found for the plaintiff. The defendant’s actions, whatever the reason, were merely done to aggravate the plaintiff.

However, if the duty is carried out in an unreasonable manner or in an inappropriate manner the law will intervene on behalf of the plaintiff. In De Keyser’s Royal Hotel v Spicer Bros (1914) the defendants were preparing the foundations for a new building and the work included driving piles into the ground. The work was carried out in the night. It started just after dinner and continued until dawn. The plaintiff brought an action against the defendants in court on the grounds that the plaintiff was unable to sleep because of the loud booming noise that resulted from the piling works.

The claimant was successful. The court granted an injunction to stop the piling works because they were not carried out in the proper manner.

If the act causes prolonged and continues interference with the right to enjoy one’s property then the courts will classify it or categorize it as nuisance. In Adams v Ursell (1913) the defendant operated a fish and chips shop on his premises. The odors that emanated from the cooking carried to his neighbor’s home, the plaintiff, who brought an action in court seeking redress. The court found for the plaintiff and held that such regular and frequent odors constituted nuisance.

Copyright © 2018 by Dyarne Ward

Tort – Contributory negligence V

In Green v Gaymer (1999) the plaintiff got on the back of a motorbike with the defendant who was drunk at the time on the throttle. The motorbike subsequently crashed into a lamppost and in the accident that followed, the defendant was killed while the plaintiff was injured. The plaintiff sued.

It is worth comparing the facts of Green v Gaymer (1999) with that of Pitt v Hunt (1990). There, the defendant aged 16 gave the plaintiff aged 18 a ride on his motorbike. The defendant neither had insurance nor had he paid road tax and he was on a bike with a much bigger engine than someone his age was allowed to be on.

In addition to that both the plaintiff and the defendant were drunk and witnesses gave evidence that they were riding recklessly on the road at the time. There was an accident and the defendant was killed while the plaintiff suffered serious injuries.

Whereas in Pitt v Hunt (1990) the maxim of ex turpi causa prevented a duty of care from arising the court in Green v Gaymer (1999) decided that the defendant owed the plaintiff a duty of care and accordingly awarded damages to the plaintiff because the duty had been breached and had resulted in an injury. The damages however were reduced by 20% because the court found that the plaintiff was contributorily negligent.

Could the defendant have raised the defense of volenti i.e. that the plaintiff had consented to accepting the risk? In Dann v Hamilton (1939) the courts determined that in order for volenti to apply in instances where passengers had gotten into a vehicle with the knowledge that the driver was drunk, the condition of the driver must be so striking or glaring that it is akin to waiting for a bomb to explode or walking on the edge of a cliff.

In Fairchild v Glenhaven Funeral Services (2001) the plaintiffs were independent contracts who were exposed to asbestos dust during the course of their employment and as a result contracted mesothelioma, a cancer of the mesothelial tissue, which is commonly caused by exposure to asbestos. The plaintiffs sued.

The court in line with the decisions in Margereson & Hancock v JW Roberts Ltd (1996) and Holtby v Brigham & Cowan (2000) held that the defendants were liable but the damages were reduced. The court took into account the numerous times the plaintiffs had willingly exposed themselves to asbestos dust, in accordance with the Law Reform (Contributory Negligence) Act 1945.

In Booth v White (2003) the plaintiff and the defendant were drinking together in a pub. The plaintiff then left the pub to watch a football match and returned later to find the defendant still in the pub.

At the time, there was nothing to indicate that the defendant was drunk and the plaintiff’s wife herself who had met the plaintiff and the defendant in the pub while they were drinking testified that the defendant appeared perfectly normal and looked to be in complete control of things.

The plaintiff and the defendant later got into a car with the defendant behind the wheel. The car crashed and the plaintiff was injured. The plaintiff sued and the defendant raised the defense of contributory negligence.

The court in line with Dann v Hamilton (1939) decided that in order for the court to find that the plaintiff was contributorily negligent, the defendant must not only be drunk but must appear to be so i.e. it must be fairly obvious to the plaintiff or anyone else around him that the defendant was drunk.

In Badger v Ministry of Defense (2005) the plaintiff was the widow of a former employee of the Ministry of Defense who died at the age of 63, as a result of lung cancer or cancer of the lungs. At the trial, it was found that, the cancer had been caused by continuous exposure to asbestos dust.

However, despite knowing that he had lung cancer the plaintiff’s husband continued to smoke. The plaintiff brought an action against the Ministry of Defense for causing the death of her husband by exposing him to asbestos dust.

The plaintiff was successful. It was found that the Ministry of Defense owed the plaintiff’s husband a duty of care. However, the court also found that the fact that the plaintiff’s husband continued to smoke after it was discovered that he had lung cancer aggravated the illness and therefore the damages that were awarded were reduced by 20%.

Copyright © 2018 by Dyarne Ward