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TORT ESSAYS 20201 Nuisance2 Private owners vs Business enterprises3 Hunter v Canary Wharf4 Rylands v Fletcher5 OLA Essay6 Strict Liability7 DOC8 Police Officers9 Psychiatric Harm10 Pure Economic Loss11 Negligent misstatementsNuisance2014 Zone A Question 1The law of nuisance is a highly effective wea...

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TORT$ESSAYS$2020$ 1!

Nuisance!! ! Private!owners!vs!Business!enterprises! $ Hunter!v!Canary!Wharf! $ Rylands!v!Fletcher! $ OLA!Essay! $ Strict!Liability! $ DOC! $ Police!Officers! $ Psychiatric!Harm! $ Pure!Economic!Loss! $ Negligent!misstatements! !

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$ Nuisance 2014 Zone A Question 1 The law of nuisance is a highly effective weapon against individuals who disturb the quite enjoyment of owners/ occupiers of property. Discuss, using case law to support your answer. The tort of nuisance may constitute one of three forms, namely: Private, Public or Statutory nuisance. Our ensuing discussion will primarily encapsulate the tort of Private nuisance. In order to optionally assess the effectiveness of nuisance as a ‘weapon’, the elements of what amounts to a nuisance, who may be sued and by who, remedies and defences will be emphasized upon. Winfield and Jolowicz define private nuisance as an ‘unlawful interference with a person’s use or enjoyment of land or any right over or in connection with it.’ Whether or not there has been a nuisance is a question of fact. According to Knight Bruce VC this is assessed: ‘not merely according to the elegant habits of living but according to plaint sober notions among our people’ (Walter v Selfe). However, nuisance is only concerned with indirect interference as opposed to direct counterparts such as trespass. Quintessentially, the claimant must prove that there was an interference with his use or enjoyment of land and said interference was unreasonable. In cases where the defendant’s use of land has resulted in physical damage to the claimant’s land, the courts are more likely to find a nuisance because it is probable that the defendant’s use of land was unreasonable (St Helens Smelting Co. v Tipping). Examples of physical damage vindicated by case law include flooding (Sedleigh Denfield v O’Callaghan), dilapidated falling into neighboring land (Wringe v Cohen) and noxious fumes damaging trees and shrubs (St Helens). In regard to interference with individual’s use or enjoyment of land, noise (Christie v Davey), fumes, heat and dust (Matania v National Provincial Bank ltd), harassing telephone calls (Khorasandijan v Bush) and emotional distress due to a brothel operation (Thompson-Shwab v Costachi) amounted to viable interferences. However, the courts have declined to protest ‘things’ of delight (CJ Wray in Bland v Mosely) or recreational facilities under nuisance. In Hunter v Canary Wharf the House of Lords unanimously held that an action did not lie in private nuisance for interference with television reception. It is difficult to reconcile Hunter with the proposition that nuisance protects against interference with use or enjoyment of land. Television reception, in the modern era has been elevated to a cardinal level in domestic home holds. The law seems to provide green light to large property developers to completely ignore whether their development would interfere with recreational facilities. Legal theorists have also expressed discontent over the decision of Hunter, asserting that the court failed to consider the social issues at stake.

There are certain factors that courts take into account when assessing whether interference was unreasonable. The locality where the nuisance occurred will have a bearing on the effectiveness of nuisance as a ‘weapon’. Thesiger LJ in Sturges v Bridgman enunciated that ‘what would be nuisance in Belgrave square would not necessarily be so in Bermondsey.’ Emission of smoke in industrial area may not constitute a nuisance even in a commercial area (Roshmer v Polsue). The implementation of planning permission may alter the nature and character of the locality so as to shift the standard of reasonable user (Lawrence v Fen Tigers). This, however, remains a question of fact. Another restriction on the use of nuisance is where injury to the claimant is caused due to exceptional sensitivity (Robinson v Kilvert). However, if damage would have inflicted the claimant’s land, despite the sensitivity that it harbored, a claim in nuisance will lie (McKinnon Industries Ltd v Walker). However, in recent years, doubt has been cast on the existence of sensitivity as a separate rule (Network Rail v CJ). The courts take the element of malice into account when adjudicating on issues of nuisance. In Christie v Davey, conduct that would otherwise not have amounted to nuisance, was held to be otherwise due to evidence of malicious intent. This principle was further vindicated by Hollywood Silver Fox Farm v Emmett. Furthermore, the duration of the nuisance is also a pivotal factor. If the duration of the nuisance is of a temporary nature, this would be evidence that the injury is trivial. However, fireworks that lasted for twenty minutes were held to amount to a nuisance (Crown River Cruises v Kimbolton Fireworks). In addition to the requirements that there must be a interference that must be unreasonable, said interference must cause the damage. Nuisance was originally a tort of strict liability. This is still so when the claimant seeks an injunction (Cambridge Water Co V Eastern Counties Leather). However, where the claimant is seeking damages, the issue is substantially murky. Lord Reid in The Wagon Mound (No. 2) asserted: ‘fault of some kind is always necessary and fault generally involves foresee ability. Lord Goff in Cambridge Water Co enunciated that a defendant should not be liable for damage of a type which he could nor reasonably foresee. One of the major limitations on nuisance is that only those with an interest in land can sue (Malone v Laskey). However this approach was challenged in Khorasandijan v Bush, where it was held that a teenager residing with her parents was entitled to receive and injunction to restrain private nuisance. Dillon LJ criticized the law as it stood-entitling only a person with a proprietary or possessory interest to sue in nuisance. This approach was followed by the CoA in Hunter v Canary Wharf. However, rather unfortunately, the HOL reversed the decision of the CoA in Hunter, reverting the law back to the era of Malone v Laskey. Nolan (A tort against land 2012) defends the decision in Hunter. He reiterates that nuisance is a tort against land. Regardless, the effectiveness of nuisance is severely, restricted because the breadth of the group that can actually avail nuisance as a ‘weapon’ is limited to those with proprietary or possessory interests in land. An occupier of land may not necessarily possess these interests.

In regard to who can qualify as a subject of a nuisance claim, there are three potential defendants. Anyone who creates a nuisance may be liable. Nuisance need not necessarily emanate from private land (Southport Corp v ESSO). The occupiers of the land are liable for the nuisances that they create. Furthermore, nuisances caused by employees-subject to principles of vicarious liability and those caused by contractors in non-delegable duties (Matania v NPB) render the occupier liable. An occupier may also be liable for nuisance caused by the trespasser if he adopts or continues the nuisance (Sedleigh Denfield) the same principle applies to nuisances that exist before the occupier acquires his interest in the land. Lastly, a landlord may be liable for a nuisance in three situations. Firstly, where the tenancy or lease is certain to create a nuisance (Tetley v Chitty). Secondly, the landlord will be liable if the nuisance exists before the letting (Brew Bros v Snax). Lastly, an express covenant by landlord to repair makes him liable for nuisances resulting from the absence of performing his duty. The effectiveness of nuisance may be curtailed by certain defenses that the defendant may avail. The defense of prescription propositions that the continuation of a nuisance for twenty years will entitle the defendant with a right to continue the nuisance. However, the fact that an activity has been carried out for twenty years may not be enough (Sturges v Bridgman). This was affirmed in Dennis v Ministry of Defense (2003). It is unreasonable to expect an individual to desist from purchasing land because a neighbor was abusing his rights (Bliss v Hall). Furthermore, where a statute authorizes the defendant’s activity, the defendant will not be liable for any nuisance arising from the activity in question (Allen v Gulf Oil Refining Co). The fact that the defendant’s activity is useful to the public in general is not a defense (Adams v Ursell). Furthermore, the contribution of others in a nuisance does not alleviate the defendant of liability (Thorpe v Brumfitt). All things considered, the effectiveness of nuisance is subject to the remedies that it possesses. There are three possible remedies. In regard to damages in property damage, the form of assessment is according to the normal principles of this type of damage. Damages for nuisances that interfere with use or enjoyment of land, such as noises or smells were once treated akin to personal injury (Bone v Seal). In Hunter, Lord Hoffman expressly disapproved of this approach, reiterating that nuisance was a tort against land. It was propositioned that damages should be calculated by references to diminution in capital of property (Runley Electronics) (Farley v Skinner). However, it is difficult to reconcile the case of Dobson v Thames (2009) with Hunter. The CoA declared that the evaluation of the interference should consider ‘the actual impact’ and ‘actual experiences’ of the claimant. This approach favors the claimant and may result in a rather generous award of damages. The remedy of abatement allows the claimant to take reasonable steps to remove the nuisance themselves. Lastly, a claimant may seek a probability injunction seeking to end a nuisance (Kennaway v Thompson). The courts have granted a injunction to upload private rights on numerous occasions (Kennaway) (Shelfer) (Watson v Craft Promo).

However, in Dennis v Ministry of Defense, Buckley LJ expressed that when there is a clash between private and public rights, the court may exercise restraint in granting a remedy. Recently, Bar v Biffa further strengthened this proposition, asserting that more flexible approach to remedies was required. Conclusively, the tort of nuisance exists in a restricted form. Recreational facilities enjoy protection, the right to sue is limited to those with interests in land, recent cases and analysis (Lee 2011) have favored damages over an injunction when private rights conflicts with public rights and defendants may avail the shields or prescription and statutory defense. All things considered, the form that private nuisance exists in today, it still serves as an extremely effective tort for those with interests in land. $ Q: ‘The Law of nuisance creates a reasonable balance between the interests of home owners/occupiers and the interests of business enterprises.’ Discuss The deliberation that this question demands primarily encapsulates the law of private nuisance and requisites thereof. There are a number of factors that courts contemplate in a dispute between the homeowners/occupiers and business enterprises. The following discussion shall attempt to promulgate that home owners may receive inadequate protection owing to factors such as claims of nuisance involving personal injury and recreational facilities, coupled with a limited right to sue, judicial discretion in regards to the equitable remedy of an injunction and no protection for abnormal sensitivity. In contrast, businesses possess limited defenses, locality and planning permission may not preclude a claim of nuisance and there is no defense when the situation involves physical damage to property. The resulting scenario is that the balance struck between the two parties is more or less reasonable, as we shall attempt to establish. Winfield and Jolowicz define private nuisance as an ‘unlawful interference with a person’s use or enjoyment of land or any right over or in connection with it.’ Amongst the requisites of a claim in private nuisance, is that there must be interference. Interference may be through three ways. The courts have given absolute protection to home owners when nuisance involves physical damage. Since the test in private nuisance is reasonable, it is probable that in cases of physical damage to property, the defendants’ use of land has been unreasonable (St Helens Smelting Co v TippingNoxious fumes damaging property). The courts have found a nuisance in cases of physical damage to property by flooding (Sedleigh Denfield v O’Callaghan), vibrations (McAlpine) and corrosion to property (McKinnon Industries v Walker). It is evident in cases of property damage; claimants enjoy adequate protection, even if that be at the expense of the interests of business enterprises. Interference may also be found in cases of encroachments e.g. overhanging tree branches (Delaware Mansions).

The third category of interference is that which interferes with the use or enjoyment of land. While the courts have offered home owners adequate protection in cases of noise (Christie v Davey), smells (Wheeler v JJ Saunders)(Hirose Electrical v Peek Ingredients), heat, dust and fumes (Matania v National Provincial Bank), harassing telephone calls (Khorasandijan v Bush) and emotional distress due to the operation of a brothel (Thompson-Shwab v Costachi), they have refused to protect what Wray CJ referred to in Bland v Moseley as ‘things of delight.’ The courts have exhibited an unequivocal reluctance to protect recreational facilities as evidenced by the HOL decision in Hunter v Canary Wharf. The HOL refused to protect TV reception in a claim of nuisance for want of propriety characteristics. The case has garnered extreme criticism as it gives green light to property developers to obliterate the interests of home owners. The decision in Hunter is undisputedly out-dated as TV reception forms an integral part of households (Sweet & Maxwell), and refusal to protect it is complete ignorance of the rights of home owners to reasonable enjoyment of property. However the judges in Hunter left the issue open to change, as they recognized that the law may have to keep pace with modernization. In Network Rail v Morris (2004), the CoA recognized that the use of electronic equipment was an important feature of modern society. The law in this area is in urgent need of reform, because as the decision in Hunter stands, the interest of business enterprises stultifies those of home owners when it comes to the enjoyment of recreational facilities. A requisite of a successful claim in nuisance is that the interference be unreasonable. According to Knight-Bruce VC, this is assessed ‘not according to the elegant and dainty habits of living but according to the plain and sober notions amongst our people.’ Lord Wright in Sedleigh Denfield referred to the very same principle as assessing what is reasonable in light of the ordinary wage of mankind living in society.’ There are certain factors that courts take into account when assessing reasonableness. The courts have referred to offer claimants protection for abnormal sensitivity (Robinson v Kilvert) (Morris-refusal to protect claimants’ recording studio from electronic interference) such a refusal does a good job of balancing the rights of business owners with occupiers, especially when considering that abnormal sensitivity is discarded when normal property would also have been damaged (McKinnon Industries Ltd v Walker). Amongst other factors, the courts also take locality into account (St Helens Smelting). In Sturges v Bridgman, Thesiger LJ expounded that what may constitute a nuisance in Belgrave Square may not necessarily be so in Bermondsey. Once again, this distinction is to be commended since it recognizes that nuisance is colored by the context of locality, so that residential occupant could expect the same level of protection in an industrial area as he would in a residential locality. Furthermore, planning permissions are not held to change the character of the locality (Lawrence v Fen Tigers) (Coventry v Lawrence). This may happen over time.

One of the paramount restrictions in a claim of nuisance is the limited to sue. Only occupiers with a proprietary right in property have the locus standi for a claim in nuisance Malone v Laski as reaffirmed in Hunter v Canary Wharf. This law has been severely criticized. In Hunter, property developers were given a green light to neglect the interests of residents on two grounds, one of those being that they did not have the locus standi required due to absence of proprietary characteristics. Nuisance is, after all a tort of land. The right to sue was challenged on human rights grounds under Article 8 of ECHR, asserting in Khatun v UK that ‘home’ was a concept that was fact specific. This argument was ultimately dismissed in Dobson v Thames whereby the CoA re-planted the legal strait jacket on the right to sue in nuisance. Although the right to sue does not impact business enterprises directly, it does restrict the class of people that can bring a claim in nuisance. Therefore, licenses are discriminated against, and essentially have no rights in the tort of nuisance. The rights of business enterprises also suffer when it comes to defenses. The courts do not hold coming to a nuisance as a defense (Coventry v Lawrence), nor does the defense of prescription (carrying out of an activity for 20 years) enjoy popularity in judicial spheres. It is only by virtue of statutory authority, that a business enterprise has a guaranteed defense. Both home owners/occupiers and business enterprises possess certain vulnerabilities in the tort of nuisance. The aforementioned arguments attempted to encapsulate the prominent dilemmas. The inevitable conclusion is that the law does indeed attempt to balance the rights of the two parties. However, in regards to the protection of recreational facilities, specifically TV reception, the law requires reform. In the state in which it exists as of new, the stance of the courts, in light of modern society, is unforgivable. It is perhaps the most prominent example of enterprise rights completely overshadowing those of homeowners. So while the law attempts to balance both rights, when it comes to TV reception, it fails to do so adequately.

Hunter v Canary Wharf Private nuisance protects interest in and enjoyment of land. In order to bring an action, the claimant must have an interest in the land. The rule that a person who does not have a proprietary or possessory interest in the land cannot sue can be traced back to Malone v Laskey. The Court of Appeal held that only a person with a possessory or proprietary in the land alleged to be the subject of nuisance could sue and therefore, the members of the occupier’s family did not have locus standi for that reason. This view was challenged by another Court of Appeal decision 85 years later in Khorasandjian v Bush (1993). In this case a majority of the Court of Appeal had held that a plaintiff who had no proprietary interest in the property (she was a teenager residing with her parents) was entitled to an injunction to restrain a private nuisance in the form of harassment by persistent unwanted telephone calls (adopting the approach of the Appellate Division of the Alberta Supreme Court in Motherwell v Motherwell (1976)). Dillon LJ commented that it would be ‘ridiculous’ if in the present age the law is that the making of deliberately harassing and pestering telephone calls to a person is only actionable in civil courts if the recipient of the calls happens to have a freehold or leasehold interest in the premises in which he or she has

received the calls: ‘The court has at times to reconsider earlier decisions in the light of changed social conditions’. The approach of the majority in Khorasandjian v Bush was then adopted by the Court of Appeal in Hunter v Canary Wharf (1996). Pill LJ said that ‘a substantial link between the person enjoying the use and the land on which he or she is enjoying it is essential but…. Occupation of property, as a home, does confer upon the occupant a capacity to sue in private nuisance. The Court of Appeal considered that it was no longer te...