Essay: The law of nuisance

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  • Subject area(s): Law essays
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  • Published on: July 10, 2019
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In the scenario some multiple legal issues arise under the tort of law like nuisance and this essay is going to be discussing the different areas of law that would apply to the parties.

Paragraph 1 – Nuisance

Nuisance is one of the oldest areas of tort to exist to date and the definition is the indirect inference with the claimants use and enjoyment of land. An example of an indirect interference could be excessive noise or noxious fumes as they would interfere with the claimants use or enjoyment of his land. (Bermingham and Brennan, 2018, p.276). A case that shows an actionable nuisance would be Tetley v Chitty (1986) where a disturbance by a go cart track was held to constitute a nuisance. There is two types of nuisance and they are public and private nuisance. (Bermingham and Brennan, 2018, p.276)

Private Nuisance is defined as an “unreasonable interference with the use or enjoyment of land or an interference with rights over land” (Bermingham and Brennan, 2018, p.278). In the case of Bamford v Turnley (1862) , “private nuisance was defined as a continuous activity or state of affairs causing a substantial and unreasonable interference with a plaintiff’s land or his use or enjoyment of that land.” For private nuisance to succeed the claimant must show damage has been suffered and that the interference was unlawful. (Bermingham and Brennan, 2018, p.278)

Damage must be proved in order for private nuisance to be successful and this could be shown by the claimant by either showing indirect physical damage or loss of amenity (personal discomfort) in the claimants use of premises. The case of Hunter v Canary Wharf Ltd (1997) , “it was held that a deposit of dust is capable of giving rise to an action in nuisance.” (Bermingham and Brennan, 2018, p.279)

An unlawful interference is an interference with the claimants use or enjoyment of land that is unlawful. The law will focus more on the unreasonableness of the interference rather than the reasonable of the defendant’s conduct. Not every interference that occurs is a nuisance. In the case of Sedleigh-Denfield v O’Callaghan (1940) , Lord Wright said, “a useful test is what is reasonable according to the ordinary usage of mankind living in a particular society”. So, for an interference to be unlawful, it must interfere with the ordinary comfort physically of human existence. (Bermingham and Brennan, 2018, p.279). When deciding what is reasonable, the following factors are taken into account. The factors taken into account are the “abnormal sensitivity of the claimant, the nature of the locality, the time and duration of the interference and the defendant’s conduct, taking account of all the circumstances in the case.” (Bermingham and Brennan, 2018, p.280)

The definition of abnormal sensitivity is where the claimants damaged property or health is particularly sensitive to damage by the defendant’s actions. This is illustrated in the case of Robinson v Kilvert (1889) . In the case, the defendant’s manufactured paper boxes in the cellar which required hot and dry air. “They heated the cellar accordingly, but this raised the temperature of the floor above which caused the claimants stock of delicate brown paper to dry and diminish in value.” The action of nuisance didn’t succeed here because ordinary brown paper wouldn’t have been damaged by the heat. (Bermingham and Brennan, 2018, p.280)

The nature of the locality is another factor taken into account when deciding what is unreasonable. This is a factor taken into account because “what is a reasonable activity in one area might be unreasonable in another area.” This is shown in the case of Sturges v Bermondsey (1879) when the Lord Justice Thesiger says “What would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey”. At the time this case happened Belgrave Square consisted of residential properties whereas Bermondsey was known for leather tanning which left a smell. (Bermingham and Brennan, 2018, p.282)

The time and duration will also be considered in determining the reasonable of the interference. This is considered because what “may be reasonable at one point in the day may be unreasonable if it is done at another time of day.” (Bermingham and Brennan, 2018, p.285) This was shown in the case of Halsey v Esso (1961) , where the filling of oil tankers at 10am was reasonable but doing this activity at 10pm was held to be unreasonable so it constituted a nuisance. A temporary state of affairs when it comes to building can be a nuisance. This was shown in the case of De Keyser’s Royal Hotel v Spicer (1914) . In the case, piledriving at night was held to be a nuisance even though it was only a temporary duration. The courts limited the time of the activity. (Bermingham and Brennan, 2018, p.285) The remedy that was granted in this case was piledriving is restricted between 10pm and 6:30am. (Bermingham and Brennan, 2018, p.286)

The defendant’s conduct in all of the circumstances of the case is also taken into account when deciding if the nuisance is unreasonable. The factors taken into account are the “motives of the defendant and the reasonableness of his conduct taking into account all the circumstances of the case.” (Bermingham and Brennan, 2018, p.286) This was shown in the case of Christie v Davey (1893) where the plaintiff was a music teacher who lived in a flat, the defend who lived next door was annoyed by the music lessons and in retaliation he banged on the wall with trays and whistle. “An injunction was granted in the case on the ground that the series of noises made by the defendant wasn’t a legitimate use of his house.” (Bermingham and Brennan, 2018, p.287)

Public Nuisance concerns protecting the interests of the public. Lord Justice Robert Romer defined public nuisance as an “act or omissions which materially affects the reasonable comfort and convenience of life of a class of her Majesty’s subjects”. (Bermingham and Brennan, 2018, p.300). There needs to be a sufficient amount of people that constitute a class for an interference which affects the class for it to amount to a public nuisance. “A public nuisance which endangers the life, health, property, or morals of a class of her majesty’s subjects amounts to a crime as well as a tort”. Is essential the act/omission affects a substantial amount of the public for it amount to the crime of public nuisance. (Bermingham and Brennan, 2018, p.300)

Paragraph 2 – Negligence
Negligence as a tort is a “breach of a legal duty to take care which results in damage to the claimant”, this is Winfield’s definition. There are 3 key elements of negligence and they are duty of care, a breach of that duty and that breach of duty caused damage. (Bermingham and Brennan, 2018, p.48)

There must be a duty of care between the defendant and claimant. A case that established duty of care was Donoghue v Stevenson (1932) . In this case, the defendants friend bought her a ginger beer and she drank some of it. It was an opaque bottle, as she drank more, a decomposed snail eventually fell out. She claimed she suffered shock and illness, but she couldn’t sue the seller as her friend bought the bottle of beer so instead, she sued the manufacturer. “The House of Lords held that the existence of a contract between the defendant and the purchaser wouldn’t bar a claim in tort by the defend despite that she was a third party”. This meant that now there was a duty of care manufacturers had towards their customers. This case also established the neighbourhood principle. This is the test that Lord Atkin employed for the existence of duty of care. It basically is where “you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.” (Bermingham and Brennan, 2018, p.49). There must also be a breach of duty of care. This basically means that if the defendant owes the claimant a duty of care and they break it by doing an act or omission, then they are in breach of it. An example of this could be a parent not feeding their child when they owe a duty of care towards their child and are in breach of it. The claimant must also have suffered damage due to the defendant’s actions and this damage must be a legally recognised kind of damage. (Bermingham and Brennan, 2018, p.48)

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