TORT Lecture 21 - Public Nuisance, Rylands v Fletcher, Trespass to Land PDF

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TORT Lecture 20 Public Nuisance, Rylands v Fletcher, Trespass to Land Public Nuisance Interference affecting the public domain Primarily a common law crime but exceptionally, can be actionable as tort Negligence may not work because there may be no injury caused negligent act Interference that affec...

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TORT Lecture 20 Public Nuisance, Rylands v Fletcher, Trespass to Land Public Nuisance - Interference affecting the public domain - Primarily a common law crime but exceptionally, can be actionable as tort - Negligence may not work because there may be no injury caused by negligent act - Interference that “materially affects the reasonable comfort and convenience of a class of Her Majesty’s subjects” (Romer LJ) - “a nuisance so widespread that it would not be reasonable to expect one person to take proceedings on his own to stop it” (Lord Denning) - Actionable by Attorney-General for injunction - By individual only if he has suffered particular damage (particular to P and NOT the whole class) Distinguished from private nuisance - Interference with public domain (occur in public land, not private land) - Widespread - A class of persons is affected - No requirement of an interest in land - Protects against particular damage, i.e. particular to P as distinguished from public in general - Personal injury damages recoverable Examples from case law: - Obstruction of highway, e.g. scaffolding over the pavement, unlawfully parked cars for an extended period - Keeping a brothel (prostitute) - Failed crowd control at public event (concerts, demonstrations) - Mismanaged waste disposal container - Bogus bomb alerts - Pollution, e.g. dust, noise and vibration Particular damage can include: - Personal injury - Damage to property - Economic loss - Inconvenience and delay, if substantial, direct and different in nature than that suffered by others A special case - Premises in want of repair adjoining highway, causing injury to passerby or adjoining property (illegal structure poorly maintained, some part of the building structures fell) Wringe v Cohen: strict liability historically, take special care

TORT Lecture 20 Public Nuisance, Rylands v Fletcher, Trespass to Land Leung Tsang Hung (HK): changed. P.771. canopy collapsed and killed pedestrians. P had a judgment against the occupier of the flat. P also sue incorporated owners of the buildings Rylands v Fletcher - Private nuisance: land-based tort - Inherently dangerous land uses creating unusual risks - Stricter liability - Infrequently used - originally developed to cover isolated escapes not covered by nuisance P.794 19th century case, D landlord decided to build a reservoir in his land containing millions of gallons of the land, of which the adjacent land there is P’s mine, P’s mine was flooded, P thought that D should be strictly liable because he used the land in an unusual way) - now, can also include continuing escapes, so overlaps with nuisance - a sub-species of nuisance HELD: “The person who in the course of non-natural user of land 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.” Likely to cause mischief ‘if it escapees’: Chemicals, rubbish, large quantities of water, munitions/explosives, raw materials Mischief: “I do not think the mischief or danger test should be at all easily satisfied. It must be shown that the D has done something which he recognised, or ought to have recognised, as giving rise to an exceptionally high risk of danger or mischief if there should be an escape” Lord Bingham in Transco (HL, 2004) Non-natural use: D must have brought something onto the land “which was not naturally there” (Blackburn J, R v F) D must be putting the land to “non-natural use” (Lord Cairns, R v F) Now Transco (HL 2004) – “extraordinary, unusual use” Non-natural (Extraordinary) Use - decided on facts of case - taking into account all the circumstance, such as locality, nature and degree of risks, social utility - industrial storage: quantity, manner of storage, character of neighbourhood - policy at play – who benefits? - Has resulted in inconsistent case law, particularly in relation to industrial use - Now: ordinary user is a preferable test to natural user… the D;s use of land must be extraordinary and unusual

TORT Lecture 20 Public Nuisance, Rylands v Fletcher, Trespass to Land Examples from the case law: natural or un-natural use? - storage in the reservoir: Non-natural use, Rylands v Fletcher - manufacture of munitions in factory: Natural use, Reid v Lyons (1947) - storage of plastic dolls in factory: Natural use, Wayfoong Credit (1984) - storage of chemicals in tannery: Non-natural use, Cambridge Water (1994) - storage of large quantities of water in bleaching and dying factory: Non-natural use, Wong Ching Chi v Full Yue (1994) - storage of water in domestic water pipe: Natural use, Transco (2004) Escape: must be from one property to another, no longer need to be isolated, one-off escape, as it was in R v F Cambridge Water, “Continuing escape” of chemicals over long period of time = escape Transco, “continuing escape” of water over long period of time = escape Escape does not need to have been reasonably foreseeable Who can sue and be sued? Only a person with interest in land can sue (Transco) Causation and Remoteness: traditionally, D liable for all the natural consequences of the escape, NOW: D only liable Defences: as in standard nuisance cases, - Consent, i.e. to accumulation on D’s land - Act of stranger, e.g. trespasser or licensee not under control of D caused escape - Act of God (natural causes), very rarely successful Remedies: - damages for damage to property - consequent economic loss - no damages for death or personal injury - injunction (available theoretically, but it is one-off) Standard Nuisance or R v F? - considerable overlap now - if facts fit both, in particular if it’s a continuing escape case, bring actions in both - usual to argue R v F first (traditionally stricter)  then nuisance as fall-back - R v F: favourable to P who doesn't have to prove fault The future of R v F - only 1 successful case in UK since WWII - somewhat more frequent in HK - strictness largely removed from the tort action - overlap with subspecies of nuisance (Cambridge Water)

TORT Lecture 20 Public Nuisance, Rylands v Fletcher, Trespass to Land -

negligence inevitably present “It is hard to escape the conclusion that the intellectual effort devoted to the rule by judges and writers over has brought forth a mouse” Lord Hoffman, Transco.

Trespass to Land - Land-based tort - Protects possession, i.e. physical control of land and intention to exercise that control (NOT necessarily ownership) - Direct and immediate intrusions  Distinguished from nuisance - Intention to enter, NOT to trespass/ interfere, i.e. voluntary and affirmative entry e.g. planting a tree - Related to surface (throwing something on the P’s land) Airspace? - Transient intrusion: Bernstein, D owned an airplane and took photograph of the land and sold the Ariel photo to the P, P concerned about privacy and security HELD: no trespass, do not have rights to the heaven If invasion takes place at a height that is so low that P could reasonably use  trespass  Protects only that airspace necessary to land use - Intrusion from a fixed structure: Anchor Brewhouse usque ad coelom: you have all right, D’s crane was over P’s land, P wanted it to be stopeed by an injunction, Respass. Hong Kong? Westlands: different law in HK Subspace? Bocardo Defences - Consent - Statutory authority (e.g. police powers to enter to arrest or stop crime) - Necessity – where D acts reasonably to protect his or a public interest where the intrusion and damage to P is less than that expected to D or the public – but the defence no available if necessity created by D’s negligence Remedies - damages - nominal or substantial - non-trivial trespass, based on normal market value, e.g. reasonable rent fo the time of the occupation - aggravated and exemplary (landlord trespassed into tenant’s land to do renovation) - self-help/abatement - injunction – virtually as of right (Anchor Brewhouse)...