A2 tort- nuisance exam
In this case, the appropriate area of law to apply is nuisance. There are two types of nuisance, private and public. As public nuisance is about affecting the reasonable comfort and convenience of a class of her majesty’s subjects (Attorney-General v PYA Quarries Ltd [1957]), the right type to use is private. The definition of private nuisance is ‘the unlawful or unreasonable indirect interference with a person’s quiet use and enjoyment of land’. There are three types of private nuisance. These are:
· Nuisance by encroachment to land,
· Nuisance by a direct physical injury to a neighbours land,
· Nuisance by interference with a neighbour's quiet enjoyment of his land.
In all cases and torts, there needs to be someone who can sue, and someone who can be sued. The person who can sue is the person with proprietary interest, (Hunter v Canary Wharf [1997] where a family of tenants made an unsuccessful claim because they did not have proprietary interest in the land). The person who may be sued is the creator of the nuisance, the occupiers or the landlord. In Tetley v Chitty (1986) the council granted permission for a go kart track on council owned land. The council was liable for nuisance because of the noise.
Like most torts, there are ingredients which need to be used to come to a conclusion whether there is unlawful interference or unreasonableness. The claimant must prove that the defendants unreasonableness The rule is sic utere tuo ut alienum non laedas (So use your own property as not to injure your neighbour's). The courts will take into account the locality, sensitivity of the claimant, the social utility of the defendants conduct, malice and the state of the defendants land when assessing the unreasonableness of the defendant. But before this, the claimant must prove that the nuisance is a continuous interference. In the case De Keyser's Royal Hotel v Spicer Bros Ltd (1914) noisy pile driving at night during temporary building works. This is rare as a single act does not usually amount to a nuisance. In Sturges v Bridgman (1879) it was stated that what would be a nuisance in Belgravia square, would not be a nuisance in Bermondsey. This basically means in a place where noise is susceptible, it may not be in a country town. The sensitivity of the claimant standard of tolerance is that of a normal neighbour, so anyone who is sensitive in some way, their case is unlikely to succeed in nuisance. There are two contrasting cases which shows a successful case and an unsuccessful case. In Robinson v Kilvert (1889) the claimant stored abnormally sensitive paper in his cellar which was affected by the adjoining property, the claim was successful. In the case of McKinnon Industries v Walker (1951) fumes from the defendants factory damaged the claimants delicate orchids. As the fumes would have damaged normal flowers, the case was successful. The social utility of the defendants act is whether the activity is useful for the whole community, taking into account the locality and duration of the act. In the case Harrison v Southwark Water Co (1891) building work carried out at reasonable times of the day did not amount to a nuisance. It is not usually important to establish malicious behaviour on the defendants side, but it may be evidence for unreasonableness. In the case of Christie v Davis (1893) the claimant gave music lessons. The defendant who was irritated by the noise, retaliated by banging on the walls with the intention of spoiling the claimants lessons. The claim was successful. The occupier must look after his land to prevent or minimize dangers to adjoining land from natural hazards on his land. In the case of Leakey v National Trust (1980) the national trust owned land upon which there was a large mound of earth which was being gradually eroded by natural processes, and was sliding onto the Claiments property. It was held that an occupier must take such steps as are reasonable to prevent or minimise dangers to adjoining land from natural hazards on his land.
As with most torts, the defendant may use a number of defences. The defendant may use the defence of prescription which is where the nuisance has been carried out for more than twenty years which give the occupier a prescriptive right. The defendant may also say that their activities were authorised by a statute. In Allen v gulf oil (1981) Parliament intended a refinery to be constructed. There was a statutory immunity in respect of any nuisance which was an inevitable result. it is important to note that coming to a nuisance is no defence. In the case of Bliss v Hall (1938) the claimant moved next to a candle-making factory which had been operating for three years.
If the case succeeds, the judge will use remedies to compensate the claimant. There are three types of remedies, these are damages, injunctions and abatements. The measure of damages will be the diminution in the value of the land if the case is nuisance by encroachment or damage to land. If the case is the interference with land, the measure will be the reduction in amenity value. Injunctions are used to stop the nuisance happening again, and are given by the discretion of the court. Abatement is the remedy of self help, like removing over-hanging tree branches, which are a nuisance.
In the case of Norman and Emma v Les there is a potential claim as we can assume they have propriety interest in the land and Les is the occupier. The first claim they are making is for being kept awake during the night by Les drilling and hammering till late. His action is indirect because he does not have the intention of keeping them awake. It is also a continuous act as he has been doing it for many nights. Being they are light sleepers, Les may claim that it would not affect a normal person. However, his other neighbour Emily, has also been kept awake because of Les’s activities. To illustrate this, we can use the case of McKinnon Industries v Walker, as it is shown that normal plants would also be damaged. There is also no social utility for Les’s action, as his extension does not benefit the whole community. It could be said that Les was being malicious. Norman and Emma asked him to be more reasonable but he refused to. With all these points, the claim is likely to be successful. Les can use no defences. The most likely of remedies to be used is an injunction to stop further nuisance.
In Norman and Emma’s second claim against Les, Les gathered together a large amount of building rubbish and left it in his yard on top of his kitchen rubbish. The rubbish begins to smell and the fumes from the split tins of paint stripper have caused valuable plants in Norman and Emma’s garden to die. Again this is an indirect action, and is stopping the couple from enjoying their use of the land. In this claim, the courts will look at the state of the defendants land. Les should have looked after the pile of rubbish and prevent natural hazards from occurring. As he failed to do so, the natural hazards killed the plants (Leakey v National Trust [1980]) This claim is also likely to succeed. The remedies the court will use is damages for the plants.
In the case of Emily v Les, there is also a potential claim because Emily will have proprietary interest in her land and we have already worked out that Les is an occupier. The type of nuisance he is creating is interfering with Emily’s quiet enjoyment of her land. The nuisance is also indirect. The courts in this case will look at the malicious behaviour from Emily. She has retaliated by playing Radio 2 on at full volume during the middle of the night. Her retaliation is similar to the case of Christie v Davey where the neighbour retaliated by banging on the walls. Because of Emily’s retaliation, her claim instantly becomes void and the case is unlikely to succeed. Because she did this, there is a potential claim for Les against Emily.