Summary
Summary Nuisance
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These notes are aimed at 1st-year tort law students. They include lots of detailed information (including many cases) on public and private nuisance and the rule in Rylands v Fletcher.
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NUISANCELiability for nuisance and under the rule in Rylands v Fletcher: Summary
Public nuisance
1. Public nuisance is a crime at common law. “A person is guilty of a public nuisance, who (a) does an act not warranted by law, or (b) omits to
discharge a legal duty, if the effect of the act or omission is to endanger the life, health, property, […] or comfort of the public, or to obstruct the public
in the exercise or enjoyment of rights common to all Her Majesty’s subjects.”
2. The Attorney-General and (under the Local Government Act 1972 s.222) a local authority have standing to seek an injunction to restrain a public
nuisance.
3. Any person who suffers special damage as result of a public nuisance for which the defendant is responsible may sue D in tort, seeking an injunction
and damages. To establish special damage “[the claimant must show that he or she] has suffered some particular or special loss over and above the
ordinary inconvenience suffered by the public at large” (Rose v Miles). Damages for personal injuries are recoverable (Corby Group Litigation case)
Private nuisance
4. “Private nuisance may be described as unlawful interference with a person’s use or enjoyment of land, or some right over, or in connection with it.”
5. Who may sue? Interference with a servitude: the person(s) in whom the legal right is vested; other private nuisances: the person(s) with a legal
interest in the land affected (Hunter v Canary Wharf Ltd).
6. When is an interference unreasonable?
“Material” or “substantial damage” normally sufficient to establish that D’s user is unreasonable. But not damage that is suffered because the property
is abnormally sensitive (Robinson v Kilvert)
Where there is no damage to property but there is an interference with comfort and convenience, the court must balance the interests of C and D,
taking account of:
(a) the intensity of the effect on the claimant, including such factors as the duration, frequency and timing of the interference; whether the problem
can be attributed to the claimant’s abnormal sensitivity; the nature of the locality (St Helens Smelting Co v Tipping)
(b) The nature of D’s conduct. There can no liability if D has the specific legal right to act as he or she did (Mayor of Bradford V Pickles). Otherwise, the
court can consider the social utility of D’s conduct, including whether D is malicious (Christie v Davey; Hollywood Silver Fox Farm Ltd v Emmett).
7. It is unclear whether (a) there has to be a continuing interference & (b) the nuisance has to arise from user by the D of land occupied by him or her.
8. Who can be sued?
(a) the creator of the nuisance. It is debated whether liability is strict (Cambridge Water), but it is now clear that the creator of a nuisance will not be
liable where the damage is not reasonably foreseeable (Northumbrian Water Ltd v Sir Robert McAlpine Ltd).
(b) occupier of the land from which nuisance emanates is liable if (i) they authorise the creation of the nuisance; (ii) the nuisance is created by an
employee or (where there is a non-delegable duty) an independent contractor; or (iv) the occupier continues/adopts the nuisance. An occupier of land
‘continues’ a nuisance if, with knowledge or presumed knowledge of its existence, he fails to take any reasonable means to bring it to an end, though
with ample time to do so” (Sedleigh-Denfield v O’Callaghan). This rule applies where the nuisance is created by a trespasser (Sedleigh-Denfield), a
licensee (Cocking v Eacott) or nature (Goldman v Hargrave) or the occupier’s predecessor in title. There is a “measured duty of care” in that the
resources of D to deal with the problem, in a broad sense) can be taken into account. (Liability here also arises in negligence, on the same principles.)
(c) the landlord, where the property is leasehold, is liable if (i) the landlord has expressly or impliedly authorised the nuisance; (ii) the landlord knew or
ought to have known of the nuisance before the letting; the landlord has covenanted to repair or has the right to enter and repair.
8. Defences.
Recognised defences include: (i) Twenty years’ prescription; (ii) statutory authority (the grant of planning permission does not give rise to this defence
(Coventry v Lawrence); (iii) unforeseeable act of a stranger; (iv) act of God.
Defences that haven’t been recognised include: (i) C has come to the nuisance (Miller v Jackson); but such a defence may now be recognised in specific
circumstances where C changes the use of his land after the nuisance has started (obiter dicta in Coventry v Lawrence); (ii) D’s activity is useful; (iii) the
nuisance is due to many (Lambton v Mellish).
9. Remedies. Injunction & damages.
Rylands v Fletcher liability
10. An occupier of land who can show that another occupier of land has (a) brought or kept on his land (b) an exceptionally dangerous or mischievous
thing (c) in extraordinary or unusual circumstances is in my opinion entitled to recover compensation from that occupier for (d) any damage caused to
his property interest by (e) the escape of that thing, (f) subject to defences of act of God or of a stranger, (g) without the need to prove negligence
(Based on Lord Bingham in Transco)
11. The damage has to be foreseeable if there is an escape; the escape itself need not be foreseeable (Cambridge Water).
12. Recognised defences include: (i) Consent; (ii) Statutory authority; (iii) unforeseeable act of a stranger; (iv) act of God.
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