Thursday, February 01, 2007


Tuesday 30 January 2007

We continued with the tort of nuisance, and the factors taken into account b the courts when deciding on whether a private nuisance has taken place.

DURATION. A private nuisance is often demonstrated by the repetition or recurrence of the interference; a single occurrence is more likely to give rise to a public nuisance or an action under the rule in Rylands v Fletcher (below). The longer it continues the more likely it is to be a nuisance.

However, if there is a state of affairs on the defendant’s land likely to cause a nuisance, then the actual interference may only occur once. It is clear that if the state of affairs is foreseeably likely to cause harm to the claimants land a nuisance is committed. In Spice v Smee (1946) the defendant installed electrical wiring in his house. The wiring was faulty and caused a fire which damaged the claimants house. The defendant was held liable for nuisance which was the state of affairs on his land (the faulty wiring).

PUBLIC UTILITY. The traditional view is that in assessing reasonableness the court does not take into account any wider notions of whether the activity was for the public benefit. However, in deciding whether or not to grant an injunction the court may take into account public interest. In Miller v Jackson (1977) the Court of Appeal refused to grant an injunction against a cricket club when interference was caused by defendant.

In Dennis v Ministry of Defence [2003], unreported, the claimant couple, living (with three teenage children) directly below the flight path of RAF Harrier jets used in pilot training, sought a remedy for the excessive noise. After hearing evidence that the noise level was indeed very high, Buckley J awarded the claimants damages totalling almost £1 million, including £300,000 for the loss of value to their home. The public interest in maintaining the training programme at the RAF station was greater than the couple’s private interest, he said, but selected individuals should not bear the cost of the public benefit and common fairness demanded that the claimant should be compensated.

MALICE. In Christie v Davey (1893) the defendants had maliciously responded to noise made by the claimant music teacher. Their motive made their actions unreasonable and a nuisance.

Similarly, in Hollywood Silver Fox Farm v Emmet (1936) the defendant, after a quarrel with the claimant, made arrangements for guns to be fired close to the border of his own land and the claimants during the breeding season of the claimants silver foxes. He was aware that the foxes were sensitive to noise at this time. An injunction was granted to restrain him.

These cases must be read in the light of Bradford Corporation v Pickles (1895) in which Lord Halsbury LC stated that “if it was a lawful act, however ill the motive might be, he (the defendant) had a right to do it”. The defendant had interfered with the natural water which percolated under his land, eventually making its way downhill to be used by the claimant. There was no enforceable right to the use of this water and the defendant committed no tort by his actions. This case is often highlighted by the Chief Examiner as being important, yet overlooked by students.

Is it necessary for a claimant to prove that the defendant was negligent in order to succeed in a nuisance action? Clearly not, otherwise the tort of nuisance would be redundant.

The distinction between the two is that in negligence the court look at the way the defendant did something; in nuisance the court is looking at a protected interest of the claimant and balancing it against what the defendant did.

Although fault may not be essential to the creation of liability, it is essential to remoteness. The test for remoteness of damage in nuisance is the same as that in negligence: Wagon Mound (No. 2) (1967), i.e. reasonable foreseeability of the type of damage caused.

REMEDIES. The principal remedy is the injunction. The principles on which injunctions will be granted were laid down in, Shelfer v City Of London Electric Lighting Co. (1895). If the claimant establishes that a nuisance has been committed then the court’s discretion not to award an injunction is only to be exercised in exceptional circumstances. If the injury to the claimant’s legal rights is small and capable of being compensated by a small monetary payment and the award of an injunction would be oppressive, then damages may be awarded. The principle is that the defendant should not be able to buy the right to commit a nuisance.

There is no mention of refusing an injunction in the public interest, yet that is exactly what occurred in Miller v Jackson (1977) (above). The Court of Appeal refused an injunction against a cricket club on the ground that the club provided a valuable recreational and social utility.

Damages may be claimed, and it is usually necessary for the claimant to prove the damage.

The remedy of abatement is available in nuisance. It may be used, for example to cut branches from overhanging trees. If abatement requires the entry to another person’s land, notice must be given or the abator will be a trespasser. Care must be taken to avoid damage to the other person’s land or property. This is rarely granted, and usually not advisable.

DEFENCES. There are defences, and issues that look like defences, but which are generally not.

Coming to the nuisance. It means “I was here first”. It is no defence to argue that the claimant was aware of the nuisance when he moved to the area. In Sturges v Bridgman (1879) the defendant had used an industrial pestle and mortar for years in his business. This caused no interference to claimant doctor until he built an extension consulting room in his garden. The claimant obtained an injunction.

Prescription. In an action for private nuisance, if the nuisance has been actionable for a period of 20 years and the claimant was aware of the nuisance throughout the relevant period, then the defence of prescription applies: Sturges v Bridgman (above).

Statutory authority. If a statute orders something to be done then there will be no liability for performing the duty and for any inevitable consequences. The courts will normally interpret this as authority to cause interference provided there is no negligence. The relevance of planning permission (in this case to erect pig housing units) has been considered in Wheeler v Saunders (1995) by the Court of Appeal. A distinction was drawn between the power of Parliament to grant statutory authority for certain activities and that of a planning authority which can at most effect a change of use of an area of land. Such permission granted did not prevent a claim in nuisance caused by the smell from the pigs.

We then turned to the rule in Rylands v Fletcher. The rule arose as a result of the Industrial Revolution of the 19th century. As land was put to industrial use damage was frequently caused to neighbouring landowners. The rule was developed to impose strict liability on industrialists who did this, on the basis that where a person exploited land for profit and imposed costs on a neighbour as a result, those costs should be borne by the profit taker, without proof of fault.

The snag is that there has been a lot of mis-use of the rule, where falling flagpoles and escaping caravanners have been held to be within the rule. Other, obstinate, judges have been obsessed by a ‘fault principle’.

The rule was laid down by Blackburn J in Rylands v Fletcher (1865). The defendant employed independent contractors to build a reservoir. The contractors omitted to seal up underground passages and when the reservoir was filled with water the claimants mine was flooded:

A person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril and if he does not do so, he is prima facie answerable for all the damage which is the natural consequence of its escape.”

The House of Lords affirmed this statement and added the requirement that the use of the land should be non-natural.

The gist of the tort is that it governs liability for escapes from land, used for a non-natural purpose, which cause damage. It overlaps with nuisance and liability may lie in the alternative.

The modern application of the rule was discussed in very few English cases in recent years. The facts of Cambridge Water Co. Ltd v Eastern Counties Leather (1994) have given the House of Lords a rare opportunity to comment upon certain aspects of the rule. It is now decided that the strict liability will only arise if the defendant knew or ought reasonably to have foreseen the type of damage which the escaped things might cause; that is, that the test for remoteness of damage is the same as for private nuisance, i.e. reasonable foreseeability.

The parties to an action are usually neighbouring landowners.

Whatever it is must be likely to do mischief if it escapes. Most things are capable of causing harm if not properly controlled. This covers not merely intrinsically dangerous things such as chemicals and explosives. It also includes accumulations of water, electricity, fire, explosives, gas, slag heaps, a fairground ride and, in one case, caravan dwellers (you know what I mean).

There must be an accumulation, in the sense that the things have been artificially brought or kept there.

The use of the land must be non-natural. The test depends on the circumstances of time and place as was shown in Read v Lyons (1947). Here the use of land as a munitions factory in war-time was classed as a natural user, i.e. the concept is adaptable to current social and moral conditions. The claimant was employed at the factory and was injured when a shell exploded. Rylands could not apply as there had been no escape; in the absence of negligence there was no cause of action.

The tort is not actionable per se, damage must be proved.

In Hale v Jennings Bros (1938) the tenant of a stall at a fairground was successful in a claim for personal injuries suffered when the defendant’s “chair-o-plane” crashed.

Are damages for pure economic loss recoverable? In Weller v Foot And Mouth Disease Research Institute (1966) a germ escaped from the defendant’s institute and caused an outbreak of foot and mouth disease. The claimant auctioneers sued for lost profits as they were unable to hold cattle auctions. The action failed.

The facts of Cambridge Water have shown a shift in the attitude of the courts. Eastern Counties Leather (ECL) had carried on the business of tanning leather near Cambridge since the 17th century. From 1973 onwards a chemical, used in the degreasing of animal pelts, was stored in large quantities on ECL’s premises. Cambridge Water Company (CWC) bought a borehole in the area in 1976, to supply drinking water to Cambridge. It was not until 1983 that a test was available to detect microscopic levels of such a chemical. CWC were by then required to use the test because of an EC Directive on the quality of drinking water, and the water from the borehole in question was found to contain levels far in excess of what was permitted. CWC were forced to close down the borehole and start up another, thus incurring substantial costs. These they sought to recover as damages from the “polluter”: the chemical had seeped into the ground by percolating down from the surface every time there was a small spillage during the tanning process. Such accidents did not necessarily denote negligence on the part of ECL.

The appeal to the House of Lords focused upon the question of whether foreseeability of harm of the relevant type was an essential element of liability either in nuisance or Rylands v Fletcher. Lord Goff referred to the Wagon Mound as having settled the issue regarding nuisance (harm must be foreseeable). He then considered the very close historical link between nuisance and Rylands v Fletcher and also the reluctance of the Law Commission to propose statutory reform regarding ultra-hazardous activities. It appeared to him logical that the test for remoteness of damage in Rylands v Fletcher should be the same as that in nuisance (and in fact in negligence). It should be remembered that, on the facts of the Cambridge Water case, the original seepage’s occurred in circumstances where a reasonably prudent person would not foresee contamination of ground water resulting. ECL was therefore not liable for CWC’s losses.

Liability under the rule is strict, thus the absence of negligence is not a defence; there are certain defences which have been recognised by the courts confirming that liability is strict but not absolute.

CONSENT. If the claimant expressly, or impliedly, consents to the presence of the “thing” on the defendant’s property, the defendant is not liable if it escapes, except where he is actually negligent.

In Peters v Prince Of Wales Theatre (Birmingham) Ltd (1943) the claimant had leased shop from the adjoining theatre owners. The claimant’s shop was flooded when pipes for a sprinkler system burst during cold weather. Implied consent on the part of the claimant as to the existence of the sprinkler system meant that the claim could not succeed. Note that there was no negligence.

ACT OF A STRANGER. If the escape is caused by the unforeseeable act of a stranger, this is a good defence - see Perry v Kendricks Transport (1956) where the defendants parked their coach on their car park. The petrol tank had been drained. The child claimant was crossing waste land adjacent to the car park when he was injured by an explosion. This had been caused by a small boy who had thrown a lighted match into the petrol tank.

ACT OF GOD. Whilst remembered by students, it is of no particular importance, having only been applied once! In Nichols v Marsland (1876) extremely heavy rain caused artificial lakes to burst their banks. It was held that this flooding was an Act of God.

However, the decision has been criticised in Greenock Corp. v Caledonian Railway (1917), and its application is extremely limited. In this case the corporation changed the natural course of a stream in order to construct a concrete paddling pool for children. When very heavy rain fell, the pool overflowed, swelled by the natural water reverting to its course, and caused damage to the claimant’s property. The House of Lords held that the rainfall was not an Act of God. It may apply in the case of earthquakes, lightning or tornadoes.

STATUTORY AUTHORITY. Whether a statute excludes liability under the rule in RYLANDS v FLETCHER is a question of construction of the statute. In Green v Chelsea Waterworks Co. (1894), a water main burst. It was held that as the defendants were obliged by statute to maintain a water supply, bursts were inevitable from time to time and in the absence of negligence there was no liability for the flood damage to the claimant’s premises. In other cases if a statute merely empowers a body to supply a service, there may well be liability in similar circumstances.

We will continue with this, and liability for fire, next week.

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