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32 Cards in this Set

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Nuisance - Definition
Nuisance = an act or omission which amounts to an unreasonable interference with, disturbance of, or annoyance to another person in the exercise of his rights associated with enjoyment of his property.
Private nuisance
Private nuisance is actionable only as a tort. It involves rights relating to ownership, occupation or personal interests in connection with land.

Though initially concerned with protecting people from interference in relationship to ownership of land, private nuisance now extends to enjoyment of personal interests connected with the land.

The following factors must be considered in a nuisance action:

1) Locus Standi;
2) Conduct - acts or omissions;
3) Damage or Interference;
4) Strict liability for Material Damage;
5) Liability for interference with enjoyment judged by standard of unreasonable impact.
Public nuisance
Public nuisance may constitute both a crime and a tort. It involves rights of a person qua member of the public, e.g. water supply, access to business, access to workplace etc.

Public nuisance is concerned with rights enjoyed by members of the public in relation to interference with rights enjoyed by the entire public, or a considerable class thereof, e.g. the enjoyment of paths, roads, waterways, parks, forests; access to places of business and work.

The tort covers active conduct or omissions by (a) the Def, or (b) third parties for whom the Def is responsible.

Recovery for (a) personal injury, and (b) damage to property is unproblematic.

More controversial is pure economic loss, although many cases suggests it is recoverable, e.g. Tate v. Greater London Council (1983), where the court allowed for recovery of loss of business caused by customers’ inability to access the Pl’s business.
Tort of Nuisance
Nuisance is the appropriate tort where there is threatened or actual disturbance of a continuous nature.

It covers a broad expanse of areas; initially land, but now many ancilliary issues; almost all forms of pollution give rise to actionable nuisance, for example.
Nuisance v. Negligence
There are three fundamental differences between the two torts:

i. Nuisance contains an element of strict liability for material harm, whereas negligence concerns fault-based liability;

ii. Nuisance focuses on Def’s reasonableness post-impact, negligence focuses on reasonableness pre-impact;

iii. The focus of remedies is different: nuisance allows for prohibitory or mandatory injunctions and damages.
Tate v. Greater London Council (1983)
The court allowed for recovery in public nuisance of loss of business caused by customers’ inability to access the Pl’s business.
Locus Standi
In England, exclusive possession of the land must be shown to ground a nuisance action. (Hunter)

Hanrahan v. Merck Sharpe and Dohme (1988) established that a Pl in Ireland merely needs to show occupation of premises.
Omissions
Liability has been clearly established for omissions by the Def which lead to a nuisance.
 Liability may include failure to alleviate natural hazards, omissions to alleviate risks caused by third parties, failure to repair property, or failure to act on a disruptive state of affairs.
Harrington v. Cork County Council (2005)
Caravans were present (trespassing) on land adjacent to a business, which then sued the Def; the court found for the Pl, holding that the council had not taken all reasonable steps to alleviate the nuisance; the court granted an injunction requiring the Def to take all reasonable steps to remove the trespassers and to prevent further occurences, as well as abating the nuisance by cleaning up the area.
Larkin v. Dublin City Council (2006)
A derelict house was declared vested in Dublin Council but still owned by a man and the estate of his late uncle; a fire in 1998 left a hole in the roof; water spilled in, causing damage to the Pl’s premises next door; the roof was fixed only in 2001; the court held that all Defs owed a duty of care, which – because of a five-month delay by the council in repairing etc. – had been breached. The court found that the Pl’s delay in contacting the relevant parties amounted to a failure to mitigate loss; however, on the facts, not a failure with a causitive link to the Def’s nuisance.
Falling tree scenarios
In England, strict liability for failure to repair property adjoining a highway. Here, less clear, but in Lynch -v- Hetherton (1991) rather than the English liability test, the court favoured the test whereby a landowner “is bound to take such care as a reasonable and prudent landowner would take to guard against the danger or damage being done by a falling tree”.
Lynch v. Hetherton (1991)
Pl’s car was damaged after crashing into a tree which had fallen from the Def’s land; rather than the English liability test, the court favoured the test whereby a landowner “is bound to take such care as a reasonable and prudent landowner would take to guard against the danger or damage being done by a falling tree”.
Acts
In cases involving multiple defendants (e.g. one owner, one occupier etc.), the party actively creating the nuisance is most likely to be held liable.
Goldfarb v. Williams (1945)
Pl occupied 1st and 3rd floors; Def let 2nd floor to a sports and social club, which informed him they would run dances; these caused much noise in the 1st and 3rd floor; the court held the Def responsible for the creation of the nuisance; principle: where people’s conduct is the natural or inevitable consequence of a certain business, the owner/creator will be held liable.
O’Kane v. Campbell (1985)
Followed Goldfarb -v- Williams. 24-hour shop at a junction between a busy thoroughfare and a residential street; Pl suied for nuisance resulting from customers loitering outside the shop in the early hours; court found for Pl, because a Def is liable for the ordinary and natural conduct of people he attracts to the neighbourhood.

Lynch J: elderly people may sleep more lightly, but “are equally entitled to their night’s sleep.”
Damage or Interference
The Pl must show damage to recover or be granted an injunction.

In rare (old) cases, damage was presumed based on geography and the circumstances, in the same vein as res ipsa.

Where there is interference with a right of way, no damage needs to be shown (rationale: difficulty of proving damage).


 In all other cases, damage must be shown. There are two types of damage:

i. Material Damage
This is damage to the actual land, and to property including chattels, e.g. Hanrahan: Pls recovered for damage to their cattle caused by toxic emissions from a neighbouring plant.

ii. Interference with enjoyment
This extends to residents, occupiers, and even the children of the Pl. Halpin v. Tara Mines (1976): “sensible discomfort to the reasonable man”.
McGrane v. Louth CC (1993)
Pl sought an injunction in respect of the location of a proposed dump; this was rejected by the court on the ground that the council had engaged experts to ascertain the best location, and had considered potential nuisance.
Liability for Material Damage
Liability for Material Damage Strict

 Halpin v. Tara Mines (1976): the court held that for the first category of damage above – material damage to land or property – liability is strict. All that is needed is proof of nuisance, damage, and causation.

Halpin v. Tara Mines (1976): the court held that for the first category of damage above – material damage to land or property – liability is strict. All that is needed is proof of nuisance, damage, and causation.
Halpin v. Tara Mines (1976)
The court held that for the first category of damage above – material damage to land or property – liability is strict. All that is needed is proof of nuisance, damage, and causation.


ii. Interference with enjoyment
This extends to residents, occupiers, and even the children of the Pl. Halpin v. Tara Mines (1976): “sensible discomfort to the reasonable man”.
Liability for Interference with Enjoyment: Unreasonable Impact
For the second category, there is an additional element: the court must be satisfied that the Pl’s enjoyment of land is unreasonably affected by the Def’s actions. This is distinguished from negligence, in that the focus here is not on the reasonableness of the Def’s conduct prior to the damage, but on the impact of the conduct on the Pl.

The court examines the following factors in assessing whether the impact is reasonable:

1) Magnitude of harm;

2) Nature of locality;

3) Defendant’s motives;

4) Social utility.
Magnitude of harm
The court will consider the intensity, duration and frequency of the interference at an objective standard (the Pl is expect to have the fortitude of a reasonble person, although a particularly old Pl may have a stronger claim, especially in terms of noise. E.g. Patterson v. Murphy, where the court held infrequent but intense blasting operations to constitute nuisance.
Nature of locality
The court will consider the general nature of the surroundings. Thus, in O’Kane v. Campell (1985), the fact that the residents lives near a busy thoroughfare was not enough to detract from the residential nature of the locality, and the action succeeded.
Defendant’s motives
Sheeran v. Meehan (2003): HC upheld the awarding of an injunction for keeping music volume down in a neighbouring house, despite evidence that the house was regulation-compliant and the noise was just below the maximum recommended level; the upholding of the injunction was due to the failure of the parties over a one-year period to reach a compromise, and the Def’s defiant responses to the Pl’s constant requests to keep down the noise.
Social utility
Bellew v. Cement Ltd (1948): injunction against noisy quarry works refused based on the urgent need for cement in the surrounding areas.
Remedies - Damages
For unforeseeable damage, no damages will be awarded.

For reasonably foreseeable damage, England awards damages.

For reasonably foreseeable public nuisance, damages are awarded here.

We await confirmation that this applies to private nuisance actions also; Quill argues for it.
Remedies - Injunctions
Because of the continuing nature of the tort, injunctions are often sought.

These are equitable, and thus discretionary remedies, and may or may not be awarded in addition to damages.

An example of a recent case where an injunction was awarded: Harrington -v- Cork City Council (travellers)
Bellew v. Cement Ltd (1948)
Injunction against noisy quarry works refused based on the urgent need for cement in the surrounding areas.
Sheeran v. Meehan (2003)
HC upheld the awarding of an injunction for keeping music volume down in a neighbouring house, despite evidence that the house was regulation-compliant and the noise was just below the maximum recommended level; the upholding of the injunction was due to the failure of the parties over a one-year period to reach a compromise, and the Def’s defiant responses to the Pl’s constant requests to keep down the noise.
General Defences
General tort negligence defences apply.

It is no defence to say that the Pl “came to the nuisance”, i.e. moved onto the property in knowledge of the nuisance.
Legislative Authority
Some statutory provisions preclude nuisance actions against statutory bodies, e.g. an airport authority.

The courts interpret these strictly.

Kelly v. Dublin CC (1986): nuisance caused during road works was held to be outside the terms of the statute, thus this defence failed.

Where no specific provision governs nuisance which is a reasonable and inevitable result of statutory works, this defence will work. Where nuisance is the result of negligence, however, or of the choice of the more intrusive method of works, it will fail.
Kelly v. Dublin CC (1986)
Nuisance caused during road works was held to be outside the terms of the statute, thus this defence failed.
Prescription (in German: das Prinzip der DULDUNG)
Where a Pl has acquiesced for a substantial period, they become debarred from taking an action.

The accepted period of accrual is generally 20 years.