Essay: The law of nuisance

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  • The law of nuisance
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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)

Another area of negligence is causation and it is divided into two issues. It is “causation in fact” and “causation in law (remoteness).” (Bermingham and Brennan, 2018, p.104)

A test is used to establish causation in fact and it is known as the ‘but for’ test, the question used here is “But for the defendant’s breach of duty, would the claimant’s damage still have occurred?”. “If the answer is yes, then the defendant’s breach can be eliminated as a factual cause of the damage done to the claimant. If the answer is no, then the defendants breach is at least one of the contributing causes of the damage.” (Bermingham and Brennan, 2018, p.104) A case that shows causation in fact clearly is Barnett v Kensington & Chelsea Management Committee (1968) . In this case “3-night watch men became ill after drinking tea, they attended the local hospital where the casualty officer on duty didn’t examine them but instead told them on the phone that they should go home and contact their own doctors. A few hours later, one of the men died from arsenic poisoning and that, on the balance of probabilities, the treatment that the doctor would have given him couldn’t have saved him. The courts decided the casualty officer had ben negligent in failing to examine the patients; however, ‘but for’ his breach, the death would have still occurred. Therefore, it was to be eliminated as a cause of the death.” (Bermingham and Brennan, 2018, p.104)

Causation in law is mainly recognised as remoteness and this area requires proof that the defendants conduct was sufficiently connected to the occurrence. (Bermingham and Brennan, 2018, p.116) One of the main cases for this area is The Wagon Mound (No 1) (1961) . In this case a ships chief engineer had allowed fuel oil to be spilled from his vessel during an operation in Sydney Harbour. The oil floated on the water until is reached the wharf where welding work was being carried out. The foreman ordered this work to be stopped as it was a fire risk, “2 days later, a spark caused a piece of rubbish floating on the oil to catch fire and this caused damage to the wharf and the 2 ships.” (Bermingham and Brennan, 2018, p.92) The damage that occurred in this case wouldn’t have been easily predicted to be the result of the defendant’s oil spillage. The Privy Council decided it “wasn’t foreseeable that the oil would spread until it came into contact with the welding. The fire was therefore not foreseeable and there would be no liability for it.” (Bermingham and Brennan, 2018, p.117) There is another situation in which the defendant will be liable even if the outcome wasn’t foreseeable and this is known as the ‘thin skull’ rule. This is where the defendant must take the claimant as he finds them so if there is a pre-existing condition that they have which makes the damage worse, the defendant will still be liable unless an intervening act breaks the chain of causation. (Bermingham and Brennan, 2018, p.119) A case that highlights the thin skull rule is R v Blaue (1975) . In this case, the defendant stabbed a woman and she ended up needing a blood transfusion but because of her religion she couldn’t go through with this procedure. She died because she didn’t take the blood transfusion and the defendant was liable for her murder. He was still liable under the thin skull rule because he took the ‘victim as he found her’.

Paragraph 3. – Pure Economic Loss
“Pure economic loss is that which isn’t linked to physical injury, death or property damage, it basically is the failure to receive expected future profit or receipt of some financial beneficial.” (Bermingham and Brennan, 2018, p.142) In the case of Cattle v Stockton Waterworks (1875) , “the claimant was under a contractual obligation to build a tunnel for a landowner. The defendants were responsible for negligently allowing a leak in the water supply which flooded the tunnel, delaying its completion and causing the claimants loss of profit, it was then held to be non-recoverable.” (Bermingham and Brennan, 2018, p.143)

Paragraph 4 – PL Harrington’s Liability to David and Rooney
David and Rooney are wanting to claim compensation for the stress and for the noise from the construction site to stop as it has affected their ability to sleep at night properly. This will most likely be private nuisance as the definition of this is an “unreasonable interference with the use or enjoyment of land or an interference with rights over land”. They have to prove that damage has been done by either showing indirect physical damage or personal discomfort in the use of the premises. They have developed fatigue from the noise and this is indirect physical damage as it isn’t directly targeted at them. As the construction work is being done overnight, this can be classed as an unreasonable interference. It is abnormally sensitive that this construction work is being done overnight. The time and duration of the interference because it is unreasonable for this work to be done overnight as this is a normal time for everyone to be sleeping so it is unreasonable that this work is being done overnight. Also, as it is a temporary state of affairs as the construction work won’t be permanent, it can still be a nuisance. The nature of locality is also considered, and it is reasonable that construction work is being done in this area, but it isn’t reasonable the time they are doing it at. The defendants conduct is reasonable as they haven’t reacted by doing anything to retaliate.

Overall, David and Rooney do have a case of private nuisance against PL Harrington and the remedies they can claim can be damages due to the stress they have had to cope with. The courts can also issue an injunction to the construction company to get them to stop working overnight as The Control of Pollution Act 1974 restricts noise overnight.

Paragraph 5 – PL Harrington’s liability to Serena
Serena is wanting compensation and payment for the expensive treatment she has had to go through for the ailment that has resurfaced. Negligence is the “breach of a legal duty to take care which results in damage to the claimant”. PL Harrington do not owe Serena a duty of care as it is the middle of the day and they are permitted to work in the day. This in turn means that they haven’t breached the duty of care as there isn’t one, but damage has been suffered as an old ailment has resurfaced. This would come under causation in law and it would the thin skull rule. As she has a pre-existing condition, it doesn’t matter the outcome wasn’t foreseeable and that the damage done is worse due to the condition.

Nuisance also comes into this as the definition is an “unreasonable interference with the use or enjoyment of land or an interference with rights over land”. It isn’t unreasonable that construction work is being done throughout the day.

Overall PL Harrington would be liable for negligence through the thin skull rule as it doesn’t matter the outcome wasn’t foreseeable, but they wouldn’t be liable for nuisance as it is reasonable they are working throughout the day.

Paragraph 6 – PL Harrington’s liability to David
David can claim under negligence as the company owes the road users a duty of care as they are operating machinery which can injure them. They breached the duty of care by not operating it properly and it has now resulted in damage to David’s car. Causation in fact can be used here and the ‘but for’ test will be used. If it wasn’t for the construction company then the damage to the car wouldn’t have occurred.

Overall PL Harrington will be liable for negligence and David can claim for emotional stress as it was his grandfather’s car which holds significant value to him and he can also claim damages as he will need a new car due to this one being damaged.

Paragraph 7 – PL Harrington’s liability to Rooney
Rooney wants to claim for the wasted ticket to Doncaster and also for the loss of earnings. As the company owed the road users a duty of care and because of the damage they did to David’s car, a gridlock ensued because of what happened. This made him late which was the reason as to why he didn’t get the job which meant he lost his potential future earnings. The ticket wasn’t really wasted because there was no guarantee that he would get the job in the first place.

Overall PL Harrington would be liable for pure economic loss as they prevented him from getting the job with the traffic gridlock.

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