8. Nuisance - Delict

Front 1

What is the test which is determinant of nuisance in scots law, and what does it mean?

Back 1

The plus quam tolerabile test, that which is more than reasonable tolerable.

Front 2

How is nuisance always determined in scots law

Back 2

On a balance of interests between the parties.

Front 3

What was held in Strathclyde Regional Council v RHM Bakeries (Scotland) Ltd 1985

Back 3

Liability in reparation in respect of nuisance proceeds on the basis of culpa, and not strict.

Front 4

What was held in Kennedy v Glenbelle 1996

Back 4

If the form taken by culpa is negligence, then an action to recover damages should be grounded on negligence; the relevant form of culpa in an action for damages based on nuisances is intention of recklessness.

Front 5

What form of delict is nuisance

Back 5

A delict of intention.

Front 6

How is culpa inferred in an action for nuisance?

Back 6

From a deliberate act done in the knowledge that harm will almost certainly follow.

Front 7

What was held in Anderson v White 2000

Back 7

It does not matter for nuisance what the defender actually knows in inferring culpa, but what they ought to have known, or what would be apparent to a reasonable person in their position.

Front 8

How is liability in nuisance established?

Back 8

If the plus quam tolerabile test, which measures the invasion of a pursuer's right to enjoyment of their property is sufficiently serious to ammount to nuisance and culpa is established there will be liability,

Front 9

Why is the plus quam tolerabile test not sufficient for cases of unintentional harm?

Back 9

Because if the harm is material then the test will always be passed, even in cases where the risk was so slight that the defender would be entitled to ignore it (See bolton v stone 1951).

Front 10

What was held in Allison v Stevenson 1908?

Back 10

A lady was interdicted from feeding pigeons on the street as their droppings blocked the pursuer's drains. This shows that the source of nuisance need not be on land owned or occupied by the defender.

Front 11

What if the difference in requirements of proof between an action based on nuisance looking for interdict and one based on damages?

Back 11

An action seeking damages will require culpa to be shown, whereas an action for interdict will be sufficient if only nuisance is shown through the plus quam tolerabile test.

Front 12

What right is protected by the law of nuisance?

Back 12

The right to comfortable enjoyment of property, free from serious disturbance, substantial inconvenience or material harm.

Front 13

What is the moders authority on the constitution of nuisance in scotland?

Back 13

Watt v Jamieson 1954

Front 14

From whose standpoint is nuisance considered?

Back 14

That of the victim.

Front 15

What was held in Watt v jamieson 1954?

Back 15

If a person uses his property in a way which causes disturbance to his neighbout it is irrelevant to plead that he was making a normal and familiar use of his own property. The balance must be struck between the freedom of someone to use his property as he pleases and the duty on him to not inflict materal loss or inconvinience on his neighbours. 'The critical question is whther what he was exposed to was plus quam tolerabile when due weight has been given to all the surrounding circumstances of the offensive conduct and its effects'.- Lord President Cooper

Front 16

What is relevant to consider on the pursuer's side for nuisance?

Back 16

1.The type of harm

2. The extend of the harm

3.The social value the use of enjoyment invaded

4. The suitability of that use to the location

5.The sensitivity to harm of the pursuer or property affected

6. the burden on the pursuer of implementing protective measures.

Front 17

What is relevant to consider on the defender's side for nuisance?

Back 17

1.The primary purpose of the conduct or operation

2. The suitability of the operation to the locality

3. The practicability of remedial measures

Front 18

What was held in Shanlin v Collins 1973?

Back 18

Reparation for mental harm is not excluded where it is incidental to nuisance. A woman suffered mental harm from the barking of her neighbour's dog.

Front 19

What was held in Ireland v Smith 1895

Back 19

Harm to moveable goods may be actioned where the harm is incidental to nuisance. The pursuer's contents of a larder were destroyed by dust from a neighbour's chicken.

Front 20

What is relevant to consider when determining whether a harm is material to nuisance?

Back 20

The degree and duration of the invasion

Front 21

What is relevant to consider in terms of noise nuisance?

Back 21

1. the quality of the noise, not just the volume.

2. the time at which the noise takes place

3. How temporary the noise will likely be

Front 22

What was held in Maguire v Charles McNeil Ltd 1922

Back 22

Pursuer's failed to interdict the use of drop hammers in a forge as they were resident in a district in which there was a large amount of heavy industry.

Front 23

What rule, meaning the law does not consider trifles operates in nusiance?

Back 23

de minimus non curat lex

Front 24

What is mean by the maxim de minimus not curat lex

Back 24

The law does not concern its self with trivialities

Front 25

What is meant by lex non favet delicatorum votis

Back 25

the law does not consider the wishes of the fastidious

Front 26

What is the effect of the maximlex non favet delicatorum votis in nuisance?

Back 26

Particularly sensitive persons or land uses may not be protected against disturbances which the reasonable occupier would find tolerable.

Front 27

What will be the effect of the pursuer being able adopt simple remedies to counteract a nuisance?

Back 27

There will not be a finding of nuisance in likelihood.

Front 28

What was held in Th Globe v North of Scotland Water Authority 2000

Back 28

Temporary interferences such as roadworks must be Bourne by pursuers, but duration will be relevant.

Front 29

What was held in Ben Nevis Distillery Ltd v The North British Aluminium Co Ltd 1948

Back 29

The social utility of an activity cannot override the interests of the victim in their use of land.

Front 30

What was held in Webster v Lord Advocate 1985

Back 30

The pursuer gained interdict for the erection of the Edinburgh Tatoo.

Front 31

What cases show that the social utility of an activity cannot override the interests of the victim in their use of land.

Back 31

1.Ben Nevis Distillery Ltd v The North British Aluminium Co Ltd 1948

2.Webster v Lord Advocate 1985

Front 32

What was held in Clippen Oil Co v Edinburgh & District Water Trustees 1897

Back 32

Lord McLaren: 'The granting of immediate interdict would be attended with with consequences to the rights of the respondents as injurious, or possibly more so, that the wrong that was complained of...because the effect of an immediate interdict would be to cause some great and immediate public inconvenience.'

Front 33

What defences may be used in an action for nuisance?

Back 33

1. Statutory authority for the operation complained of, when the nuisance is an inevitable outcome.

2.Acquiescence, if the pursuer had full knowledge of and consented to not only the activity but also the harm. This cannot merely be silence, although toleration for a long while may point towards acquiescence.

3. Prescription