Nuisance under the Law of Torts

General Definition

Nuisance as a tort means an unlawful interference with a person's use or enjoyment of land, or some right over, or in connection with it.

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There are two types of nuisance actions: Public and Private

Private nuisance action is concerned with protecting a person's right to the quiet use and enjoyment of their possession of land free from unreasonable interferences.

The tort of public nuisance is concerned with the protection of public rights.

Note: Only upon damage being suffered will an action arise under Tort

What is Private nuisance?

"An unlawful interference with a person's use or enjoyment of land or some right over or in connection with it."

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Nuisance under Tort Law- Punyashlok Dash

Note: An interference with a recognised right attached to land 'will arise from either: Material damage to land (Physical Damage); OR Substantial interference with the use or enjoyment of land or an interest inland_(Amenity Damage)

Who all can in cases of Private Nuisance?

"Old rule": The plaintiff must have a legally recognized interest in land, such as being an owner or tenant. The plaintiff must be in actual possession of the land at the time of the interference; mere occupation of the land will not be sufficient title even where the occupier is a member of the owner's or tenant's family. [Malone vLaskey].

"Present Rule":

Note 1: Even a person with exclusive unlawful possession may have sufficient title to sue since a defence of jus tertii [claim that another has better title to the land] is not available in cases of Nuisance.

Note 2: As interferences which amount to a nuisance may be continuing, a plaintiff may sue in respect of a continuing interference, which has existed even prior to taking possession of the land.

Who all can be sued for a Private Nuisance Case or against Whom Cases of Private Nuisance can be filled?

When you can file cases against the Occupiers of land for Private Nuisance:

I. A person in occupation of land from which a nuisance emanates can be sued in respect of personal acts, and for nuisances created by persons on the land with the occupier's consent (Laugher v Pointer (1826)) or for acts of persons for which permission has been given. II. The occupier will not be liable for a nuisance created by a person on the land without permission unless the occupier knew, or ought to have known of the nuisance and failed to abate it. III. An occupier will not be liable for a nuisance created prior to occupation in circumstances where neither the occupier nor the occupier's employees knew or ought to have known of the nuisance.

Case law: Montana Hotels Pty Ltd v Fasson Pty Ltd

Water was found in the cellar of the Plaintiffs hotel. It was traced to a faulty downpipe on a new building next door, which was leased by the defendant.

Held: The defendant was not liable in private nuisance. He neither knew nor ought to have known of the fault in the downpipe before the water due to faulty downpipe was discovered. (See the rule III above and apply)

Note: If the occupier takes no steps to remove a nuisance occurring through natural causes, the occupier may be liable.

Can a Landlord be made liable for nuisance created by tenant?

A landlord will only be liable for a nuisance created by a tenant: If the nuisance as expressly authorized by the landlord or was foreseeable to result from the purposes for which the property was let. (Mal^y vEichhol^ [1916])

Note: If the landlord has not authorized the interference and it is not the foreseeable consequence of the letting of the premises, the tenant will be liable.

Note 2: A landlord may be liable if the nuisance was in existence at the time the property was leased out.

Can Non-occupiers of land be made liable or sued for Private Nuisance?

Yes. A non-occupier who creates a nuisance can be liable in private nuisance. The nuisance does not have to emanate from the defendant's land I Nuisance under Tort Law- Punyashlok Dash Physical invasion of the claimant's land Damage resulting from the nuisance may be material damage.

Rule: In such cases other elements need not be satisfied, the material damage in itself will be sufficient.

Case law: St Helens Smelting Co v Tipping

The claimant in this case 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 and alkali works.

Argument of the defendant: The defendant argued that the use of property was reasonable given the locality and the smelting works existed before the claimant purchased the property.

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. (Apply the above Rule)

Illustrations of Material Damage where Plaintiff need not establish any other element: Dust damaging stock during demolition Factory emissions damaging clothes hanging outside The breaking of windows with golf balls constitutes material damage. The damage may be material damage to chattels on the land.

Traditionally, courts have distinguished between material damage caused by a defendant's failure to act or omission known as nonfeasance and that caused by a defendant's positive acts known as misfeasance.

Cases on Nonfeasance or Omission on the Part of Defendant

Case Law: Goldman v Hargrave

In this case the Court was required to determine whether the defendant was liable for the failure to extinguish a fire in a tree when the fire was caused by lightning and later spread to the plaintiffs property, causing considerable damage. The plaintiff made a partial but unsuccessful attempt to extinguish the fire. Identify the omission in the present case?

Held: the defendant was liable in private nuisance. The court took into account the defendant's knowledge, skill and resources and the fact that he made a partial but unsuccessful attempt to extinguish the fire.

Case Law: Leakey v National Trust

The defendant was liable for failing to prevent soil from a hill on its land from falling on to the plaintiffs adjacent properties.

Held: The defendant's duty is to do that which it is reasonable for him to d The Omission on the part of defendant was failing to prevent soil from a hill

Cases on Misfeasance or Defendants Positive Act

Case Law: Cambridge Water v Eastern Counties Leather pic [1994] 2 AC 264

The defendant owned a leather tanning business. Spillages of small quantities of solvents occurred over a long period of time, which seeped through the floor of the building into the soil below. These solvents made their way to the borehole owned by the Claimant water company. The borehole was used for supplying water to local residents. The water was contaminated at a level beyond that which was considered safe and Cambridge Water had to cease using the borehole. Cambridge Water brought actions based on negligence and nuisance.

Held: Eastern Counties Leather were not liable as the damage was too remote. It was not foreseeable that the spillages would result in the closing of the borehole. The foreseeabilitj of the type of damage is a pre- requisite of liability in actions of nuisance

Case Law: Rylands v Fletcher: The defendant owned a mill and constructed a reservoir on their land. The reservoir was placed over a disused mine. Water from the reservoir filtered through to the disused mine shafts and then spread to a working mine owned by the claimant causing extensive damage.

Held: The defendants were strictly liable for the damage caused by a non- natural use of land.

What amounts to Unreasonable to constitute Private Nuisance?

In determining whether interference occasioning substantial loss of enjoyment is unreasonable, the courts will start from a premise of give and take.

- Each individual impliedly consents to reasonable 'give and take' so that interferences, which are trivial, are treated as part of the incidents of everyday life. It is not a question of whether what the defendant is doing but whether the effect of the defendant's conduct upon the plaintiffs use and enjoyment of the land is unreasonable.
- Test is based upon the 'reasonable person'
- No action will lie if the plaintiff is abnormally sensitive to the harm caused by the interference or if the plaintiff uses the land for purposes which require exceptional freedom from such influences.
- To determine whether the interference with use of enjoyment is unreasonable, the court must Balance the competing interests of the parties.

Case Law: Bamford v Turnley

Plaintiff complained of the smoke and smell arising from the burning of bricks by the Defendant on his land not far from the Plaintiffs house. Evidence submitted at trial indicated that the Brick kiln operation was a temporary one, engaged in for private purposes and that Defendant operated the Brick kilns as far as possible from his neighbor's property. At trial, the judge concluded that, as the location of the kilns was sufficiently removed from Plaintiffs property and that the operation was a reasonable use upon private land. The plaintiff appealed against this.

Issue: was the defendant's use of his land unreasonable?

Held: The court reversed the lower court's ruling, stating that a Defendant's use of land, even if private and for beneficial use, is not justification for the infringement on his neighbor's rights. The public gain and the loss of the individual must be balanced — there will always be winners and losers in society; the losers in society should be compensated for their loss.

"If the defendant is not able to compensate the plaintiff through the profit that they make undergoing the activity, then it must not be in the public interest that the activity goes on."

What amounts to Interference with enjoyment?

The inconvenience the court must protect against must be an inconvenience materially interfering with the ordinary comfort physically of human existence, not merely according to elegant or dainty modes and habits of living but according to plain, sober and simple notions among English people. An interference with the enjoyment and use of land that does not result in material damage must be substantial and an unreasonable one to be actionable in private nuisance.

Case Law: Onus v Telstra Corporation Ltd [2011] NSWSC 33

Plaintiff was successful in establishing that the building of the defendant's mobile network telecomm tower would be an interference with the enjoyment of his land. Permission had been given to the Defendant to install the tower in close proximity to the plaintiffs land. The Plaintiff had used the land as an airfield, catering to light aircraft, helicopters, balloonists and parachutists. It was argued by the Plaintiff that the installation of the tower would jeopardize the safety of pilots and passengers who used the airfield.

The Defendant argued that there was no substantial interference as the plaintiffs complaint was confined to the users of airspace and to their inconvenience in travelling to his land.

Held: the effect of the tower [diminished utility of the land for pilot training] and the loss of revenue from reduced aircraft landings amounted to a substantial interference.

Locality

Note: Industrial activities in a residential area may be unreasonable but may be reasonable in a predominantly industrial area.

Case Law: Sturges v Bridgman

The defendant confectioner had used pestles and mortars in the back of his premises for about 20 years. The noise and vibration did not bother the plaintiff, a doctor whose consulting rooms were in the adjacent building. The Plaintiff then built an extra consulting room at the back of his premises and found that the noise and vibration of the defendant's pestles and mortars started to interfere with the use of his new consulting room. So he sued the Defendant in nuisance.

Held: The defendant's use of his property constituted nuisance. "Whether anything is a nuisance or not is a question to be determined, not merely by an abstract consideration of the thing itself, but in reference to its circumstances". The fact that the locality has changed over time will not prevent the interference being unreasonable at the time the action is brought

Time

Time is a factor in determining reasonableness, particularly inferences involving noise.

Case Law: Wherry v K B Hutcherson

The Defendant was engaged in construction at a site in the Sydney CBD. The work caused noise and vibrationwhich affected the offices of the plaintiff. The court held that the noise and vibration constituted a nuisance during ordinary office hours but not outside those hours. The Court granted an injunction restraining the defendant from making noise between the hours of 9am-lpm and between 2pm-5pm.

Duration

The duration of interference has an impact on the question of whether it is reasonable or not.

Case Law: Andreae v Selfridge

Andrae operated a hotel from 119 -121 Wigmore Street, London. This was part of the same island site that Selfridges were developing as part of a rolling project. Those works had continued throughout the night without interruption. Following complaints by Mrs Andrae the works paused between 10pm and 7am each night, but this was still unsatisfactory. Mrs Andrae argued that those ongoing works constituted a nuisance to her business, and claimed damages of £4,500.

Held: No nuisance. Adjoining owners are expected to put up with a certain amount of discomfort. Temporary building works are a common and ordinary use of land. If the building owner takes all reasonable steps to try and protect adjoining owners and/or occupiers he will not be liable even if, despite the precautions, they are put to discomfort.

Can the nature of activities determine whether an act can constitute Private

Nuisance or Not?

Case Law: Thompson-Schwab v Costaki

An injunction was granted in respect of the use of premises for prostitution, an activity that was regarded in the circumstances, as interference to enjoyment because of the blatant effect on the sense of sight.

What about a person with abnormal sensitivity?

Case Law: Robinson v Kilvert

The defendant carried on a business of making paper boxes. This required a warm dry atmosphere. The defendant operated from the basement of their premises and let out the ground floor to the claimant. The claimant used the premises for storage of brown paper. The heat generated from the defendant's operations damaged the brown paper belonging to the claimant.

Held: The defendant was not liable. The damage was due to the special sensitivity of the paper. The degree of heat could not be regarded as noxious and the adverse effect was peculiar to its type of business.

Does Motive have any significance in cases of Private Nuisance?

1. Case law: Hollywood Silver Fox Farm v Emmett [1936] 2 KB 468

The claimant bred silver foxes for their fur. Silver foxes are particularly timid and if disturbed when pregnant they are prone to miscarry. If alarmed when they have young they may devour them. The defendant was the claimant's neighbour. He objected to the fox farm and fired a gun on his own land close to the breeding pens with the intention to scare the foxes and impede breeding. The claimant brought an action in nuisance.

Held: The defendant was liable despite the abnormal sensitivity of the foxes because he was motivated by malice. If the nuisance was committed with the intention of causing harm to the plaintiff, what may be reasonable may become unreasonable, even if the plaintiff is of abnormal sensitivity.

2. Case law: Fraser v Booth

The Defendant was held not to be liable in nuisance for letting off firecrackers with the intention of scaring the Plaintiffs pigeons.

Reasoning: The court found that the defendant's motivation was that she could no longer tolerate the commotion caused by the birds above her house. The Court held that the Defendant's actions were found not to be malicious or spiteful acts done simply to cause damage to the Plaintiff, they had been carried out while under the stress of annoyance from an existing nuisance in the hope it would alleviate the problem.

Can Noises and vibration lead to an Action?

Rule: An occupier is entitled to enjoy their land free from unreasonable noise and vibration.

Case law: Sturges v Bridgman: The plaintiff successfully sued in nuisance for the noise and vibration from the use of the defendant's pestles and mortars in his confectionary business.

Case Law: McKenzie v Powley: singing, clapping and shouting praises was held to be nuisance.

Case Law: Cohen v City of Perth: The noise of the daily run of rubbish trucks was held to be excessive noise.

What are the Defences Available for the Defendant?

Defence of Statutory authority

The defence of statutory authorization recognizes that many activities, which are essential, or desirable for society cannot be carried out without creating a nuisance under common law. The defence requires the establishment of whether or not parliament intended the statute to authorize activities, which would otherwise be a nuisance under common law. The onus of proof is on the party alleging the intention to take away the private right to prove that such an intention appears from the statute or under any authority.

Case Law: Allen v Gulf Oil Refining Ltd

The claimant brought an action in nuisance for the smell, noise and vibration created by an oil refinery, which had been constructed by the defendant on their land. The defendant's action in constructing the oil refinery was authorized by an Act of Parliament.

Held: The defendant was not liable as it had a defence of statutory authority

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Note 1: It is no defence to an action in nuisance that the plaintiff came to the nuisance.

Note 2: The fact that the activities of the defendant are for the benefit of society does not provide a defence.

Note 3: A defendant cannot defeat a claim in nuisance by jus tertii (someone other than the plaintiff has better title to the land).

What is Public Nuisance?

"A public nuisance is an unreasonable, unwarranted, or unlawful interference with a right common to the general public.

Simply speaking, a public nuisance is an act affecting the public at large or some considerable portion of it; and it must interfere with rights, which members of the community might otherwise enjoy."

This definition had been taken to include a whole range of activities, which endangered the public, cause them inconvenience or discomfort or prevent them exercising their rights.

Public nuisance is interference with the right of public in general and is punishable as an offence.

Obstructing a public way by digging a trench, or constructing structures on it are examples of public nuisance.

Note: Although such obstruction may cause inconvenience to many persons but none can be allowed to bring a civil action for that, otherwise there may be hundreds of actions for a single act of public nuisance.

Illustration:

Digging trench on a public highway may cause inconvenience to the public at large. No member of the public, who is thus, obstructed or has to take a diversion along with others, can sue under civil law. But if anyone of them suffers more damage than suffered by the public at large, e.g., is severely injured by falling into the trench, he can sue in tort.

Rule: In order to sustain a civil action in respect of a public nuisance, proof of special and particular damage is essential.

The proof of special damage entitles the plaintiff to bring a civil action for what may be otherwise a public nuisance.

Thus, if the standing of horses and wagons for an unreasonably long time outside a man's house creates darkness and bad smell for the occupants of the house and also obstructs the access of customers into it, the damage is 'particular, direct and substantial' and entitles the occupier to maintain an action.

In Dr. Ram Raj Singh v. Babulal, the defendant created a brick-grinding machine adjoining the premises of the plaintiff, who was a medical practitioner. The brick-grinding machine generated dust, which polluted the atmosphere. The dust entered the consulting chamber of the plaintiff and caused physical inconvenience to him and patients, and their red coating on clothes, caused by the dust, could be apparently visible. It was held that special damages to the plaintiff had been proved and a permanent injunction was issued against the defendant restraining him from running his brick-grinding machine there.

Examples include:

I. Fully or partially blocking a highway - New Group Newspapers v SOGAT [1987] ICR 181-people were on strike they blocked the highway, so nothing could get in or out premise were they worked. The court held it was a public nuisance
II. Picketing on a road - Thomas v National Union of Mineworkers [1986] Ch 20 - The actions of miners striking were held to constitute a nuisance. Scott J considered that the miners returning to work should be entitled to use the public highway to enter the colliery without harassment and abuse shouted at them by the picketers.
III. Blocking a canal - Rose v Miles (1815) - The defendant wrongfully obstructed a public navigable creek, which obstructed the defendant from transporting his good through the creek. This resulted in the plaintiff having to transport his goods by land, causing him to incur extra costs. It was held that although the act of the defendant was a public nuisance, since the plaintiff was able to prove that he suffered loss over and above other members of the public, he had a right of action against the defendant.
IV. Making obscene telephone calls to large number of women — R v Johnson (Anthony Thomas) (1996)
V. Premises near to highway in dangerous state - Tarry v Ashton [1876] 1 QB 314
VI. Parking coaches on public highway - Attorney-General v Gastonia Coaches- Public Nuisance. One-off events. A coach parking in the street and blocking residents spaces was a public nuisance.
VII. Golf course to close to public road- Castle v St Augustine Links - A golf ball hit from a golf course was a public nuisance and the class affected were road users-In public nuisance, personal Injury can be claimed for.

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