Topic 11 Tort of nuisance PDF

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Topic 11, Tort of nuisance and the rule in Rylands v Fletcher -

Two key types: Public and Private Private nuisance - a “land tort” The locality principle Sturges v Bridgman (1879) 11 Ch D 852 Key Irish authority Hanrahan v Merck Sharp Dohme (Ireland) Ltd [1988] ILRM 629 standing to Sue Hunter v Canary Wharf Ltd [1997] AC 655 Motive of the Defendant Christie v Davey [1893] 1 Ch 316 Defendant’s activity of obvious social utility Miller v Jackson [1977] QB 966 Bellew v Cement Ltd [1948] 1 IR 61 Remedies in Private Nuisance Damages v Injunction Nature of injunctive relief Shelter principles Shelter v City of London Electric Lighting Company [1895] 1 Ch 287 O’Kane v Campbell [1985] 1 IR 115 The Rule in Rylands v Fletcher Rylands v Fletcher (1866) LR 1 Ex Ch 265 (aft LR 3 HL 330) McMahon and Bunchy, Chapter 25 john Murphy, “The merits of Rylands v Fletcher” (2004) 24 OJLS 643 Donal Nolan, “The Distinctiveness of Rylands v Fletcher” (2005) 121 LQR 421 Recent Judicial and Academic Reappraisal of the Rule Burnie Port Authority v General Jones Property Ltd (1994) 120 ALR 42 Cambridge Water Co v Eastern Counties Leather Plc [1994] 2 AC 264 Transco Plc v Stockport Metropolitan Borough Council [2003] UKHL 61, [2004] 2 AC 1

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Definition of nuisance: The unreasonable interference with the plaintiff’s rights of enjoyment of their property. Issues: 1) objective standards of reasonable or unreasonable of the conduct 2) tort is linked with the enjoyment of property and only constituted because of the use or enjoyment of property. – separate from negligence Very distinct remedy available – an injunction.

2 key types of nuisance 1) Public: same kind of conduct and unreasonable interreference with use of land ‘’that affects the world or the community at large’’ – plaintiffs only able to sue where they can show special damage that arose to them caused that is not shared by the public in general. Public nuisance has been overtaken by environmental law. 2) Private: involves a dispute between 2 private parties i.e. neighbours, existence of neighbourhood (next door) to have the unlawful interference there must be very close physical proximity. Key principles: land tort, focus is often on the locality principle when looking at this conduct in what setting is it taking place. level of nuisance can depend on location of conduct. The locality principle Sturges v Bridgman: The plaintiff had extended his private residence to allow for his surgery to take place there; the defendant was a confectioner in large business; the plaintiff alleged that the noise from certain pestles and mortars materially interfered with his practice and profession. • In the High Court, Jessel MR gave judgment for the plaintiff. On appeal by the defendant, • The Court of Appeal dismissed the appeal, holding that regard must be had to all the circumstances; and that what would be nuisance in one place may not be in another. • Thesiger LJ, delivering the judgment of the Court, held at 865 what is a nuisance in Belgrave Square would not necessarily be so in Bermondsey; and here a locality is devoted to a particular trade or manufacture carried on by the traders or manufacturers in a particular and established manner not constituting a public nuisance, Judges and juries would be justified in finding, and may be trusted to find, that the trade or manufacture so carried on in that locality is not a private or actionable wrong. Key Irish Authority Hanrahan v merck sharp Dohme plaintiffs farmed land situated 1 mile from factory. pharmaceutical products, storage and use of toxic substances including disposal. Plaintiffs instituted a complaint saying the manner the defendants conducted this business constituted nuisance and interfered with running of the farm and farm animals. In the High Court, Keane J dismissed the plaintiff’s claim. On appeal by the plaintiff, • The Supreme Court allowed the appeal, holding, inter alia, that the requirements of the tort of nuisance were not the same as negligence; that the plaintiffs were not required to prove want of due care by the defendants; that it was sufficient for the claim in nuisance to succeed that they establish that they

had not enjoyed the comfortable and healthy use of their land to the degree that would be expected by an ordinary person whose requirements are objectively reasonable in all the particular circumstances; that the plaintiffs had to prove the causal link between the injuries sustained and the factory emissions; and that the tort of nuisance may be said to be an implementation of the State's duties under Article 40.3 as to the personal rights of the plaintiffs as citizens Henchy J held at 634 that an occupier of land is entitled to the ‘comfortable and healthy enjoyment of the land to the degree which would be expected by an ordinary person whose requirements are objectively reasonable in all the particular circumstances.’ (emphasis added) [variable objective standard

Locality principle: a nuisance tort somewhere may not be a nuisance issue everywhere, ‘our rap was never a problem in Harlem only in Boston’ - Eminem Tort of nuisance constituted in modern context: supreme court refusal to allow plaintiffs avail of resib st lockiter. Tort of nuisance was not ineffective to protect the plaintiff’s constitutional rights. By being required to prove various ingredients of torts the court was denying unenumerated constructional rights i.e. bodily integrity. Standing to sue: Hunter v canary wharf ltd: The plaintiffs occupied dwellings in the London Docklands area; they claimed that the defendants had interfered with the reception of television broadcasts in their homes allegedly caused by the presence of a building erected by the defendants pursuant to planning permission granted by the zone authority; they further claimed that dust had deposited on their properties due to the construction of a link road; these claims were made in negligence and nuisance. In the High Court, Judge Havery QC gave judgment for the plaintiffs, holding that interference with television reception was actionable in private nuisance but to make such a claim, it was necessary to have a right to exclusive possession over the property. On appeal by the defendants, • The Court of Appeal allowed the appeal. On appeal by the plaintiffs, • The House of Lords, Lord Cooke of Thorndon dissenting, dismissed the appeal, holding that the construction of a property could not constitute an action in nuisance as there had been no actionable interference; and that, generally, only a person with an interest in the land could sue. Lord Hope of Craighead provided a useful dicta in relation to the law, in general at 723CD: It is tempting to depart form principle out of sympathy for the plaintiffs or in search of a remed for some objectionable activity, but in this area of the law it is important to resist the temptation and to rely instead on the guidance of principle. To do otherwise would risk confusion and be likely to lead to uncertainty in the development of the law (emphasis added -

Public nuisance: only people who have special damage Private nuisance: if people are renting and don’t own a house can they sue in nuisance. In Ireland yes as they are enjoying their rights of residence in a property even if they are not the owners. Must stricter rule in England tort of nuisance is property tort is

Motive of the defendant Christie v davey 1893 Plaintiffs were musician who taught music in the house. Defendants were mad at this loud noise all the time. Defendants fought back by smacking doors and making stupid loud noises. Courts said they weren’t entitled too as their motive was not up to scratch. North J was satisfied at 326 that the noises made by the defendant were ‘not of a legitimate kind, they were made deliberately and maliciously for the purpose of annoying the Plaintiffs. Defendants activity of obvious social utility: Miller v Jackson: cricket balls flying over the wall and causing injury. Plaintiff recovered and was still found to constitute a nuisance but given the social value of the cricket club they were not prepared to grant an injunction. Bellew v cement The defendants were the sole manufacturers of cement in Ireland; the plaintiff built a house on ground overlooking a quarry which he had sold to the defendants; the plaintiff’s occupation of the house was interfered with by the defendant’s blasting operations. The plaintiff instituted proceedings in nuisance, applying for an interlocutory injunction. • In the High Court, Gavan Duffy P granted the remedy sought by the plaintiff. On appeal by the defendants, • The Supreme Court, O’Byrne and Black JJ dissenting on the facts, dismissed the appeal, holding, inter alia, that the Court is not entitled to take the public convenience into consideration when dealing with the rights of private parties. • Maguire CJ held at 64 that the Court ‘is not entitled to take the public convenience into consideration when dealing with the rights of private parties. • Black J, at 70-1, held obiter ‘public convenience cannot justify refusal of a remedy for a nuisance’ but feels that ‘the particular form of relief by injunction should be denied (…) if (…) an alternative form of relief by way of damages would be adequate, and, in all the circumstances, a less objectionable remedy’.

Remedies in Private nuisance: the distinctiveness within this corner of tort law and the injunction. Injections: equitable remedy developed to try and mitigate harshness of common law. Would damages be an adequate remedy. Discretionary remedy, there will be a reward of damages depending on the amount. Damages v injunction – is injury small/large. can it be estimated in monastery terms? How significant and serious is it? To what extent would it be progressive.

Shelfer v city of London electric lighting company The defendants erected powerful engines and other works on land near to a house which was subject to a lease; consequently, structural injury was caused to the house and annoyance and discomfort to the lessee; the lessee and the reversioners brought separate actions against the company for an injunction and damages in respect of the nuisance and injury thus occasioned. • In the County Court, Kekewich J judged for the plaintiffs, awarding damages but not the injunction. On appeal by the plaintiffs, • The Court of Appeal allowed the appeal, holding that there was nothing restraining the Courts from granting the relief sought. • Lord Halsbury held at 311 that ‘there is nothing in this case which (…) can justify the Court in refusing to aid the legal rights established, by an injunction preventing the continuance of the nuisance’. • Lindley LJ held at 317 a plaintiff has shown that he only wants money; vexatious and oppressive cases; and cases were the plaintiff has so conducted himself as to render it unjust to give him more than pecuniary relief. In all such cases as these, and in all others where an action for damages is really an adequate remedy - as where the acts complained of are already finished - an injunction can properly be refused. Shelfer principles: AL Smith LJ at 322-323 set down the principles that Lindley LJ mentioned briefly above: (1) If the injury to the plaintiff’s legal rights is small, (2) And is one which is capable of being estimated in money, (3) And is one which can be adequately compensated by small money payment, (4) And the case is one in which it would be oppressive to the defendant to grant an injunction:then damages in substitution for an injunction may be given. (emphasis added) He went on to say that there may be cases where due to the ‘reckless disregard to the plaintiff’s rights, [the defendant] has disentitled himself from asking that damages may be assessed in substitution for an injunction.’ (emphasis added) Court can issue both damages and injunctions if it wishes for solving both damage claims and practical issues. O’Kane V Campbell: 24hr convenience shop: plaintiffs were elderly residents and light sleepers and the shop was disturbing their sleep. Court agreed that it was an unlawful and unreasonable experience. Court ordered opening and closing hours for the shop. Sought injunction imposing a timetable for which the shop was allowed to open

The Rule in Rylands v fletcher: -

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Per Blackburn J at 339-340: “[T]he true rule of law is, that the person who, for his own purposes, brings on his land 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”. The actual thing that’s brought on to the property does itself have to be something that is very obviously extremely dangerous. Rylands built a reservoir badly and it burst flooding fletchers mine, fletcher sought compensation. Ryland contended there had been no unreasonableness. Judges ruled that ryland were guilty. That person must keep it in at his peril.

Should this be joined in with neighbour principle should fletcher have foreseen the potential danger. This has been accepted in Australia. Rylands and fletcher joined in with the ruling in Donohoe and Stephenson. This has not been adopted in UK and Ireland yet but there are increasing academic and judicial calls to adopt it....