Law of Torts- Nuisance

NUISANCE Under the common law, persons in possession of real property (either land owners or tenants) are entitled to the quiet enjoyment of their lands. If a neighbor interferes with that quiet enjoyment, either by creating smells, sounds, pollution or any other hazard that extends past the boundaries of the property, the affected party may make a claim in nuisance. It is closely concerned with “protection of the environment’. Nuisances come in two forms: private and public. Public Nuisance A public nuisance is an unreasonable interference with the public's right to property. It includes conduct that interferes with public health, safety, peace or convenience. The unreasonableness may be evidenced by statute or by the nature of the act, including how long and how bad the effects of the activity may be. In Gillingham Borough council vs Medway (Chatham) Dock Co Ltd & Others (1991) Buckley J stated that public nuisance is primarily concerned with the effect of the act complained of (as opposed to its inherent lawfulness or unlawfulness) to the sufficient number of the public. No civil action can be brought by a private individual for public nuisance. The reason normally given is that it prevents multiplicity of actions. The Attorney General may bring an action for an injunction (‘relator action’). However, where any person is injured in some way peculiar to himself ie if he can show that he has suffered some special or particular loss over and above the ordinary inconvenience or annoyance suffered by the public at large, then he may sue in tort For the distinction between public and private nuisance see, · Sedleigh-Denfield Vs O’Callaghan [1940] A.C 880 at 905,907,918 · Arima Nantongo & Others vs Hiral Mohammed [1974] E.A 557; [1975] HCB 21 · Arima Nantongo & Anor vs Hiral Mohammed [1974] HCB 181 · Tindarwesire vs Kabale Town Council [1980] HCB 33 · Kitamirike vs Mutagubya [1965] EA 401 · Gillingham Borough Council vs Medway Dock Co Ltd [1992]3 ALLER 923 And those already cited on your reading list. Private Nuisance A private nuisance is simply a violation of one's use of quiet enjoyment of land. It does not include trespass. Private nuisance traditionally was, and is still is confined to invasions of the interest in the use and enjoyment of land, although occasionally an occupier may recover for incidental injuries sustained by him in exercise of an interest in land. Justice Lugayizi in Dr. Bwogi Richard Kanyerezi vs The management Committee Rubaga Girls School, High Court Civil appeal No.3 of 1996 quoting Winfield on tort 8th Edition pp 353-367 stated that “a nuisance is private where it exclusively affects a private person and not a sizeable number of the community where it occurs. The learned author of the said book described a nuisance as an unlawful interference with a person’s use or enjoyment of land. Such interference in essence being either a continuous or recurrent nature and usually stenches and smoke would qualify under that description. Whether a nuisance is actionable or not will depend upon a variety of considerations especially the character of the defendant’s conduct and the balancing of conflicting interests ( ie the right of the defendant to enjoy his property as he wishes as against the right of his neighbuors to enjoy theirs without interference)” In Cunard v Antifyre Ltd, 1933] 1 KB 551 Talbot J, at p 557, succinctly defined private nuisances as interferences by owners or occupiers of property with the use or enjoyment of neighbouring property. “Property” here means land, and should be amplified to include rights over it, or in connection with it. Any affected property owner has standing to sue for a private nuisance. If a nuisance is widespread enough, but yet has a public purpose, it is often treated at law as a public nuisance. Owners of interests in real property (whether owners, lessors, or holders of an easement or other interest) have standing only to bring private nuisance suits. Elements of private nuisance i. The plaintiff must possess proprietary interest ii. The act complained of should be unlawful iii. There must be an overt act (act causing the nuisance) iv. The plaintiff must also prove that nuisance emanated from the defendant’s property v. The interference must be both substantial and unreasonable In Watt vs Jamieson (1954) Lord President Cooper stated that “if any person so uses his property as to occasion serious disturbance or substantial inconvenience to his neighbor’s property, it is in general case irrelevant as a defence to plead merely that he was making a normal and familiar use of his own property. The balance in all such cases has to be held between the freedom of a proprietor to use his property as he pleases and the duty on a proprietor not to inflict material loss or inconvenience on adjoining proprietors or adjoining property That private nuisance is an invention of the plaintiff’s interest or right in possession and enjoyment of land. Scot L.J in Read vs Lyons & Co. Ltd [1945]K.B 216 at p.236 defined private nuisance as unlawful interference with a person’s use or enjoyment of land or some right over, or in connection with it. The essence of nuisance is a state of affairs that is either continuous or recurrent, a condition or activity which unduly interferes with the use or enjoyment of land See also; · Lord Goddard C.J’s judgment in Howard vs Walker 1947] 2 ALLER 197 at 199 Thus the plaintiff must have possessory/ proprietary interest in order to sue in nuisance. Nuisance is thus complementary to trespass which protects his related interest in exclusive possession. The distinction is that trespass applies only to physical intrusions by tangible objects or things whereas nuisance extends also to invasions by noise, smell, vibrations and even high frequency interference with television screens. See, John Fleming; Law of Torts, 6th Ed. 1983, pg 384-386 Reasonableness Reasonableness of the defendant’s conduct “according to the ordinary usage of mankind living in … a particular society”, per Lord Wright in Sedleigh-Denfield Vs O’Callaghan [1940] A.C 880 at 903. Reasonableness signifies what is legally right between the parties taking into account of all circumstances of the case. After balancing the competing interests of the parties, the court considers whether the interference was excessive by any standards. The fact that the defendant took all reasonable care and reduced it to a minimum provides no defence. Lord Wright further stated that, a balance has to be maintained between the right of the occupier to do what he likes with his own and the right of his neighbour not to be interfered with. It is impossible to give any precise or universal formula, but it may broadly be said that a useful test is perhaps what is reasonable according to the ordinary usages of mankind living in society, or, more correctly, in a particular society · See also ;Rapier vs London Tramways Co. [1893] 2 Ch. 588 It is not every noise, smell or dust that irritates your neighbor that will constitute nuisance. Bramell B. in Bamford vs Turney (1862) 3 B.& S 66, he stated that nuisance is premised on the protection of such interests with an attempt to balance the competing interests or rights of neighbors a rule of ‘give and take’. That liability is imposed only in those cases where harm or risk to one is greater than he ought to be required to bear under the circumstances However, in determining whether the defendant’s action is unreasonable certain considerations have to be borne in mind; a) The extent of the harm and the nature of the locality. In the case of St. Helen’s Smelting Co. vs Tipping (1865)11 H.LC 642. Weir, Casebook, 4th Ed. P. 344, Lord Westbury L.C stated that, “if a man lives in a town, it is necessary that he should subject himself to the consequences of those operations of trade which may be carried on in his immediate locality, which are necessary for trade and commerce, and also for enjoyment of property, and for the benefit of the inhabitants of the town and of the public at large” Therefore, interference which may be permissible in one area may not be permissible in another. See, Andrea vs Selfridge & co [1938] Ch.1 As such, most jurisdictions now have a system of land use planning (e.g. zoning) that describes what activities are acceptable in a given location. Zoning generally overrules nuisance. For example, if a factory is operating in an industrial zone, neighbours in the neighbouring residential zone cannot make a claim in nuisance. Jurisdictions without zoning laws essentially leave land use to be determined by the laws concerning nuisance. Veale J in Halsey vs Esso Petroleum Co [1961]1 W.L.R 683 stated that the magnitude of the harm and in some cases the nature of the locality are circumstances to be considered in determining whether the defendant has acted unreasonably. The law does not regard trifling inconveniences; everything is to be looked at from a reasonable point of view b) Utility of the defendant’s conduct Since nuisance is the law of give and take the court is inevitably concerned to some extent with the utility or general benefit to the community of the defendant’s activity. c) Abnormal sensitivity In considering what is reasonable the law does not take account of abnormal sensitivity in either persons or property. The standard of deciding whether a particular use of land exposes others to an unreasonable interference is objective, in the sense that it has regard to reactions of normal persons in the locality, not to the idiosyncrasies of the particular plaintiff. Read · Relay vs Yorkshire Electricity Board [1965] Ch.436 · Mombasa Auto Services vs South British Insurance Co. [1950] 17 EACA 72 In the case of Robinson vs Kilvert (1889) 41 CH.D 88, the defendant began a manufacture paper-boxes in the cellar of a house the upper part of which was in occupation of the plaintiff. The defendant’s business required hot and dry air and he heated the cellar accordingly. This raised temperature on the plaintiff’s floor and dried and diminished the value of brown paper which the plaintiff warehoused there; but it did not inconvenience the plaintiff’s workmen nor would it have injured paper generally. It was held that the defendant was not liable in nuisance. That “a man who carries on an exceptionally delicate trade cannot complain because it is injured by his neighbor doing something lawful on his property, if it is something which would not injure anything but exceptionally delicate trade”. Rylands vs Fletcher Principle is quite distinct from Nuisance since it relates only to cases where there has been some special use of property bringing with it increased danger to others, and does not extend to damage caused to adjoining land owners as a result of the ordinary use of the land. See, Richards vs Lothian at p. 180 and Sedleigh-Denfield Vs O’Callaghan [1940] A.C 880(Viscount Maugham’s judgment) Who can sue in private nuisance? See; Thompson Swab vs Ostak [1956] WLR 335 That the general principle is that title is the basis for an action in nuisance. Lord Goff stated that, the essence of the law of nuisance is about real property. Thus a person with no interest in land has no right of occupancy and cannot sustain an action in nuisance. A person who has merely the use of the land without either the possession of it or any other proprietary interest in it eg a mere licensee on the land, a lodger, or a guest cannot sustain an action in nuisance. See, Hunter vs Canary Wharf Ltd 1997] 2 WLR 684, a person with exclusive possession of the land. Lord Wright in Sedleigh-Denfield Vs O’Callaghan [1940] A.C 880 at 902-903 stated that “He alone has a lawful claim who has suffered an invasion of some proprietary or other interest in land” That the ground of responsibility is the possession and control of the land from which the nuisance proceeds. Who can be sued? a) The creator of the nuisance Whether or not he is in occupation of the land on which nuisance originates and it is no defence that the land is now occupied by someone else and that he has no power to abate the nuisance without committing trespass.Creation may be construed to include continuing nuisance when you should have abated it if in occupation of the premises where it originates. In Sedleigh-Denfield Vs O’Callaghan, Lord Atkin stated that, “In the context in which it is used,“continued” must indicate mere passive continuance. If a man uses on premises something which he finds there, and which itself causes a nuisance by noise, vibration, smell or fumes, he is himself, in continuing to bring into existence the noise, vibration, smell or fumes, causing a nuisance. Continuing, in this sense, and causing are the same thing. It seems to me clear that, if a man permits an offensive thing on his premises to continue to offend—that is, if he knows that it is operating offensively, is able to prevent it, and omits to prevent it—he is permitting the nuisance to continue. In other words, he is continuing it” Read · Southport Corporation vs Esso Petroleum Co. Ltd [1956] A.C 218,225, · Hall vs Beckenham Corporation [1949] 1.K.B 716,728 b) The occupier, The occupier of the premises where nuisance exists is in general liable during the period of his occupancy. It is simple where he himself created the nuisance, but further questions arise where it originated (i) with someone lawfully on the premises; or (ii) with a trespasser or as a result of an act of God; or (iii) with someone from whom the occupier acquired the property. Rowlatt J in the Division Court summaries this liability in Noble v Harrison([1926] All ER Rep at p 287;[1926] 2 KB at p 338): The damage there was caused by an overhanging tree with a latent defect and the decision was against liability. His Lordship stated that; ”… a person is liable for a nuisance constituted by the state of his property (i) if he causes it;(ii) if by neglect of some duty he allows it to arise; and (iii) if, when it has arisen without his own act or default, he omits to remedy it within a reasonable time after he did or ought to have become aware of it.” It will be seen that the learned judge in the third category makes no distinction according to whether the “nuisance” is caused by trespassers or by natural causes, and that he does not enter into any question as to the limits of the effort or expenditure required of the occupier. As a general statement of the law it was cited with apparent approval by Dixon J in Torette House Proprietary Ltd v Berkman ((1940), 62 CLR 637 at p 652). In 1940 the dictum of Scrutton LJ ([1924] 1 KB at pp 357, 358) passed into the law of England when it was approved by the House of Lords in Sedleigh-Denfield v O’Callaghan. It establishes the occupier’s liability with regard to a hazard created on his land by a trespasser, of which he has knowledge, when he fails to take reasonable steps to remove it. It was clear in that case that the hazard could have been removed by what Viscount Maugham ([1940] 3 All ER at p 359;[1940] AC at p 895) described as the “very simple step” of placing a grid in the proper place. This statement of the law has been adopted in Salmond’s Law of Torts (5th Edn)(1920) pp 258–265: “When a nuisance has been created by the act of a trespasser or otherwise without the act, authority, or permission of the occupier, the occupier is not responsible for that nuisance unless, with knowledge or means of knowledge of its existence, he suffers it to continue without taking reasonably prompt and efficient means for its abatement.” if the occupier “adopts” or “continues” the nuisance, he will be liable if damage is caused. This is the view taken of the decision in Barker v Herbert[1911] 2 KB 633. Vaughan Williams LJ, at p 640,said that, to impose a liability upon the possessor of land in such a case, there must be either the creation of a nuisance by him or a continuance by him of a nuisance. Fletcher Moulton LJ in Salsbury vs Woodland [1970] 1 Q.B 324 said, at pp 642, 643: “In a case where the nuisance is created by the act of a trespasser, it is done without the permission of the owner and against his will, and he cannot in any sense be said to have caused the nuisance; but the law recognises that there may be a continuance by him of the nuisance. In that case the gravamen is the continuance of the nuisance, and not the original causing of it”. He added that the knowledge of servants and agents for whom the owner is responsible must be attributed to him, and that cases might arise in which his or their want of knowledge might be due to neglect of duty. Read, · Salsbury vs Woodland [1970] 1 Q.B 324 , · Matania vs National Provisional Bank [1938] 2 ALLER 633, · Sedleigh-Denfield vs o’Callaghan [1940] A.C 880 c) The landlord The general rule is that a landlord is not liable for nuisance on the premises, as he is not in occupation; the proper person to sue is the tenant. However, the landlord may be liable, (i) If he has authorized nuisance (ii) If he knew of nuisance before letting. (iii) If he ought to have known of nuisance before letting (iv) Where the landlord reserves right to enter and repair or has implied right to do so. Read, · Goldman vs Hangrave [1967] 1 A.C 645 · Leakey vs National Trust [1980] Q. 485 · Defences 1. Legislative authority/statutory authority Where the alleged nuisance was caused by public authority acting under a statutory power, the defendant may have this defence that the conduct is permitted by statute. However, this defence will depend on the construction of the particular statute in question. In Tate & Lyle Industries Ltd vs Greater London Council [1983] 1 ALLER 1159, [1983] 2 AC 509, Lord Templeman summarized this defence that, “it is now well settled that where parliament by express direction or by necessary implication has authorized the construction and use of the undertaking or works, that carries with it an authority to do what is authorized with immunity from action based on nuisance. The right of ation is taken away… To this, there is made the qualification, or condition, that the statutory powers are exercised without negligence..” His Lordship further stated that one of the reasons for this approach is that parliament is presumed to have considered the interests of those who will be affected by the undertaking or works and decided that the benefits from those outweigh any necessary adverse side effects See, · Marriage vs East Suffolk River Catchment Board [1950] 1 K.B 284 · A.G vs Ivan Eriya Kafeero Nambule [1959] E.A 665 · Allen vs Gulf Refining Ltd [1981] 1 ALLER 353,[1981] AC 1001 2. Planning permission · Lord Templeman in Tate & Lyle Industries Ltd vs Greater London Council [1983] 1 ALLER 1159, [1983] 2 AC 509, stressed that the principle underlying the defence of statutory authority should be extended to planning permission. That parliament set up a statutory framework and delegated the task of balancing the interests of the community against those of individuals and of holding scales between individuals to the local planning authority. There is a right to object to any proposed grant, provisions for appeals and inquiries. There is an added safeguard for judicial review. If a planning authority grants permission for a particular construction or use in its area it is almost certain that some local inhabitants will be prejudiced in quite enjoyment of their properties. “Can they defeat the scheme by bringing an action for nuisance? If not why?” Planning permission is not a license to commit nuisance and a planning authority has no jurisdiction to authorize nuisance. However, a planning authority can, through its development plans and decisions, alter the character of a neighbourhood. This may have an effect of rendering innocent activities which, prior to the change, would have been an actionable nuisance. See Allen vs Gulf Refining Ltd [179] 3 ALLER1008 at 1020 ,[1980] QB 156 at 174-175 per Cummimng-Bruce LJ, quoted with approval on appeal. 3. Prescription A privilege to commit a private nuisance may be acquired by prescription, if it would qualify as an easement See, Hulley v Silversprings Bleaching co. [1922] 2 Ch.268 4. Consent of the plaintiff see; Kiddle vs City Business Properties Ltd [1942] 1 K.B 269, Miller vs Jackson [1977] Q.B 966 5. Common benefit. Read Bamford vs Turner (1862) 3B& S 66 (judgment of Bramwell B). His Lordship questioned such a defence that if an act that causes nuisance is for public benefit, the plaintiff cannot recover. That whenever a thing is for public benefit as properly understood- the loss to the individuals of the public who lose will bear compensation out of the gains of those who gain. See also St. Helen’s Smelting Co. vs Tipping (1865) QB 66 6. Inevitable accident, see; Southport Corporation vs Esso Petroleum Co. Ltd [1956] A.C 218 at 226 7. Default of the plaintiff Read; East S.A Telegraph Co. Ltd vs Cape town Tramways Companies Ltd [1902] A.C 381 at 393.