Nuisance

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Nuisance

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The word ‘nuisance’ is used in popular speech to mean any source ofinconvenience or annoyance, but the tort of nuisance has a more restrictedscope.

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examples of nuisances:

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The emission of noxious fumes from a factory,

*The crowing of cocks in the early hours of the morning,

* The obstruction of a public highway,

* The destruction of a building through vibrations,

* The interference with a right of access to private property.

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The remedies available to one who complains of a nuisance are:

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*Damages

*An injunction to restrain further nuisance

*Abatement. (ending or subsiding.)

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Public nuisance

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A public nuisance is committed where a person carries on someharmful activity which affects the general public or a sectionof the public

Public nuisance is basically a crime, actionable by the AttorneyGeneral. It is a tort, actionable by an individual plaintiff, onlywhere the latter can show that the defendant’s conduct hascaused him ‘particular damage’ over and above that suffered bythe general public.

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The reason for this requirement of proof of particular damage

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where a wrong is committed against the community at large, it isconsidered to be more appropriate to leave the action in the hands ofthe Attorney General as the representative of the public, rather than toallow the defendant to be harassed by an unlimited number of suits byprivate individuals, all complaining of the same damage.

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‘particular damage’

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*one view is that the plaintiffmust show that he has suffered damage which is different in kind, and notmerely in degree, from that suffered by the general public;

- Stein v Gonzales (1985)

* another viewis that it is sufficient for the plaintiff to show that he has suffered damagewhich is appreciably greater in degree than any suffered by the generalpublic.

-Southport Corp v Esso Petroleum Co Ltd [1954] 2 All ER 561

Particular damage will include not only special damage in the sense ofactual pecuniary (monetary) loss,4 but also general damage, such asdelay or inconvenience, provided that it is substantial.

-eg. Shopkeeper losing a customer and Walsh v Ervin

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Private nuisance

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the law of privatenuisance is designed to protect the individual owner or occupier ofland from substantial interference with his enjoyment thereof.

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the main differences between the two species of nuisance arethese:

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(a) public nuisance is a crime, and is a tort where particular damage isproved. Private nuisance is a tort only;

(b) to succeed in private nuisance, the plaintiff must have an interest inland. In public nuisance, there is no such requirement;

(c) damages for personal injuries can be recovered in public nuisance.16Whether such a claim will lie in private nuisance is doubtful.

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Categories of private nuisance

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(a) physical injury to the plaintiff’s property, for example, where theplaintiff’s crops are destroyed by fumes from the defendant’s factory, orwhere vibrations from the defendant’s building operations causestructural damage to the plaintiff’s house;Categories of private nuisancePrivate nuisance falls into three categories

(b) substantial interference with the plaintiff’s user and enjoyment ofhis land, for example, where the plaintiff is subjected to unreasonablenoise or smells emanating from the defendant’s neighbouring land

(c) interference with easements and rights of access, for example, wherethe defendant wrongfully obstructs the plaintiff’s right of way, right tolight or right of access to his property.

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two mainrequirements have been developed for private nuisance:

(basis of liability)

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(a) the injury or interference complained of will not be actionableunless it is (i) sensible (in the case of material damage to land); or (ii)substantial (in the case of interference with enjoyment of land)

(b) the defendant will not be held liable unless his conduct wasunreasonable in the circumstances.

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Sensible material damage

(basis of liability)

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(a) which is not merely trifling or minimal; and(b) which causes a reduction in the value of the plaintiff’s property

It is easier for a plaintiff to succeed in nuisance where he can showmaterial damage to his property than where he complains of interferencewith his enjoyment of land, since tangible damage can be more easilyobserved and measured than personal discomfort or inconvenience arisingfrom, for example, noise or smells.

-St HelensSmelting Co v Tipping,19

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Substantial interference with enjoyment of land

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Where an action in nuisance is founded on interference with enjoyment of land,such as where the plaintiff complains of inconvenience, annoyance or discomfortcaused by the defendant’s conduct, the interference must be shown to besubstantial. The classic formulation of the rule is that of Luxmoore J inVanderpant v May fair Hotel Co Ltd [1929]

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Reasonableness of defendant’s conduct

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*Locality

*Utility of the defendant’s conduct

*Plaintiff’s abnormal sensitivity

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Locality

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As we have seen,23 the nature of thelocality where the acts complained of haveoccurred may be taken into account in cases ofinterference with enjoyment ofland, but not in cases of physical injury to property.

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*Utility of the defendant’s conduct

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In general, the court will not find for the defendant merely because he shows that his conduct was beneficial or useful to the community, for that would compel the plaintiff ‘to bear the burden alone of an activity from which many others will benefit’.

On the other hand,the utility of the defendant’s activity may be relevant, in thesense that if such anactivity is carried out not forany useful purpose but merelyfor thepurpose of annoying or spiting the plaintiff, it will be actionable in nuisance.

Secondly, there is no doubt that ‘some consideration will be given tothe fact that the offensive enterprise is essential and unavoidable in the particular locality, like a coal mine, quarry or some public utility or service’

Thirdly, since an injunction is a discretionary remedy, the court may refuse to grant it even though the plaintiff has established that the tort of nuisance has been committed.

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Plaintiff’s abnormal sensitivity

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If the plaintiffsuffered damage only because he or his property was abnormallydelicate orsensitive, and he would not otherwise have been harmed, the defendantwill not be liable innuisance, for the law expects a person to conform to a reasonablestandard of conduct,not to some unusually high standard which the plaintiff seeksto impose.

-Robinson v Kilvert

On the other hand, if the ordinary use of land would have been affected by thedefendant’s activities, the claim may succeed.

-McKinnon Industries v Walker

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Defendant’s malice

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That the defendant carried on his activity with the soleor main purpose of causingharm or annoyance to the plaintiff is a factor to betaken into account in decidingwhether his conduct was reasonable. ‘Malice’ in thiscontext means ‘spite’, ‘ill-will’or ‘evilmotive’."

-Hollywood Silver Fox Farm Ltd v Emmett [1936] 2 KB 468.

-Christie v Davey [1893] 1 Ch 316

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Duration of the harm

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a) It has been said that the essence of nuisance is a continuing state of affairs on the defendant’s land which causes damage to the plaintiff

(b) A relevant factor in determining the reasonableness of the defendant’s conductis whether it is temporary or permanent. Thus, a mere temporary inconvenience, such as noise and dust from demolition or building work on the defendant’s land, may not be unreasonable, whereas a permanent inconvenience, such as noise and smoke emanating from the defendant’s factory, is more likely to be held unreasonable and, therefore, actionable.