Tort Law and Private Nuisance - Essay Example

? LAW Institute LAW The issue in this question relates to nuisance and trespass to land, each of these would be discussed, the law on these would be given, an application to the facts would be made and eventually a conclusion would be drawn based on the evaluation made. Private nuisance has been defined as any substantial and unreasonable interference with the land of the claimant or of any right over or in connection with the enjoyment of the land. The interference which must be unreasonable is also known as the principle of reasonable used. The ways in which a defendant may interfere with the interests of the claimant is either by affecting materially his land or affecting his use or enjoyment of land or the interference with the servitudes and similar rights over the land. The most important case in respect of material interference with property and interference with use or enjoyment and their distinction was St Helens Smelting Co. v. Tipping1 whereby the House of Lords that the surrounding circumstances were important but there were different provisions when the concern was in respect of material injury to the said property. There had been different reasons which had been attribute to such a reasoning a few included that greater protection was offered to the prior aspect of property than to enjoyment derived from the property or the ease of quantifying. The next issue that needs to be considered in respect of nuisance is material damage to property and whether the defendant is held liable for such material damage. The important aspect in respect of nuisance which relates to this question is that of interference with the use or enjoyment of land. It is important to mention that not every interference in respect of enjoyment of property is held to be actionable as can be seen in the judgment of Vice-Chancellor in Walter v. Selfe2 that the inconvenience must be ‘considered in fact as more than fanciful, more than one of mere delicacy or fastidiousness, as an inconvenience materially interfering with the ordinary comfort...of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions among the English people’. Thus a balance must be struck with enjoyment of use of occupier and his neighbour (Halsey v. Esso Petroleum Co, Ltd.)3. The interference is dependent on reasonableness which in turn is dependent on a number factors that duration of the interference, sensitivity of the plaintiff, character of neighbourhood and fault of the defendant. The first aspect is that of duration which should be appreciable. (Cunard v. Antifyre Ltd. where it was said to be substantial length of time)4 . However, in Harrison v. Southwark and Vauxhall Water Co.5 it was stated that something which would normally constitute to be nuisance would because of its temporary and useful nature be excused. As far as sensitivity is considered, the courts would not allow a claim for an abnormal sensitivity of the claimant or his property which makes a undisruptive activity to be harmful to the defendant. The next aspect is that of character of the neighbourhood which as stated in St Helens is not to be considered in respect of cases which deal with physical damage to property, however, it is applicable to cases where the interference is in respect of enjoyment or use. In Sturges v. Bridgman Thesiger LJ stated ‘Whether anything is a nuisance or not is a question to be determined, not merely by an abstract consideration of the thing itself, but in reference to its circumstances; what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey; and where a locality is devoted to a particular trade or manufacture carried on by the traders and manufacturers in a particular established manner not constituting a public nuisance. Judges and juries would be justified in finding, and may be trusted to find, that the trade or manufacture so carried on in that locality is not a private or actionable wrong.’ It is necessary to look at the decision of Rushmer v. Polsue & Alfieri Ltd.6 whereby the court restrained the defendant from using his printing press at night, even though it was located in the printing area. The final issues is that of fault. The question is an unresolved one and the evaluation of Lord Wilberforce in Goldman v. Hargrave is an important one whereby he said that ‘the tort of nuisance, uncertain in its boundary, may comprise a wide variety of situation, in some of which negligence plays no part, in others of which it is decisive’. The obiter dicta illustrates that there is existent the possibility of strict as well as fault based liability. The important element in respect of nuisance is the determination of the person who can sue and claim. The traditional position had been that the persons who had an interest in land could bring an action, thus this included a person who had not title to the land but has exclusive possession. The Matrimonial Home Act 1967 has allowed for a spouse to bring an action. Under Article 8 ECHR the position in respect of the common law rules is deemed to be changing. An action in respect of nuisance will generally be brought about against the person who is owner or occupier of the land. The first issue that would be discussed is the one whereby the family of David has lost sleep because of the noise from factory operations and the wagons. The problem in respect of the wagon cannot clearly be associated with the land and so private nuisance in respect of this would be argued not to be applicable. However it would be argued that it is because of the land these wagons are there and there are factory operations as well. Clearly this is an interference with the use of property. On the facts it is evident that the duration of the factory operations and the wagons is not a one off incident and so duration would clearly not constitute to be a problem. Sensitivity would not be an issue as clearly the operations would cause disturbance. The character of neighbourhood would be important, however, it is important to mention the case whereby even though the printing press was existent in an area of that nature the defendant was still prevented from operating the press. Thus it can be said that the operations of the factory would be restrained at night as the final issue of fault is also attributable to the factory owners. The defences that are available in respect of nuisance would not be applicable in respect of this aspect and so nuisance would be established. As far as Aimee is concerned, she can bring an action under the Matrimonial Act. The only problem in respect of Aimee would be the sensitivity issue which would cause a problem thereby not allowing a claim for an abnormal sensitivity of the claimant which has made undisruptive activity to be harmful to the Aimee. The issue on sensitivity is the only area which can be relied upon as a defence. In the rebuttal Aimee can argue that the dust has affected the rose tree as well. This is a matter of evaluation of the courts. In respect of the rose tree it can be said to be a material damage to property and so the courts would not necessarily take into account the factors discussed above. The reports of the expert would help in proving the effect of the dust and thus material damage to property can be claimed. The defence that can be relied upon by the factory owner would be that they did not have knowledge in this respect. However, the success of such a defence is dependent upon the environmental aspects and to for determination of the courts. The issue in respect of Wally is not in respect of private nuisance and concerns public nuisance as the car used to be parked at the public highway. The definition of public nuisance can be found in Archbold’s Criminal Pleading and Practice ‘Every person is guilty of an offence at common law, known as public nuisance, who does an act not warranted by law, or omits to discharge a legal duty, if the effect of the act or omission is to endanger life, health, property, morals, or comfort of the public or to obstruct the public in the exercise or employment of rights common to all Her Majesty’s subjects’. In respect of a person bringing an action on his own, he can do so, but only if he can prove special loss which is over and above the inconveniences that was suffered by the public in general, thus proof of special damages is required, or direct and substantial damage to himself. The liberal approach that is being followed now days is one whereby the claimant can show that his right which he shared with others was more affected due to the behaviour of the defendant. Thus in respect of Wally he has to prove that special damage has been cause that is the loss of his car and it was due to the factory’s chimney. Under the liberal approach the court would find that there has been a public nuisance in respect of the tort and therefore the factory owners should be held liable for the damage to the car. As far as Wally entering the premises is concerned this was a trespass to land the law on which will now be discussed. Trespass has been defined as direct interference with the land which in turn is in possession of another. If somebody enters as a trespasser then reasonable force can be used once he has been asked to leave politely. (Collins v. Renison)7. In respect of the question it can be said that the secretary did ask Wally to leave, which he refused and on the facts he was a trespasser ab initio. Furthermore, the use of reasonable force by the secretary was justified and therefore Wally would be held liable for the damage to window as he was a trespasser on the factory. References MARKESINIS, B., DEAKIN, S., & JOHNSTON, A. (2007). Markesinis and Deakin's tort law. Oxford, Clarendon Pr. (Oxford Univ. Pr.) ROGERS, W. V. H., JOLOWICZ, J. A., & WINFIELD, P. H. (2006). Winfield and Jolowicz on tort. London, Sweet & Maxwell ELLIOT, C., & QUINN, F. (2005). Tort law. Harlow [etc.], Pearson Longman FINCH, E. (2007). Tort law. Harlow, England, Pearson Education. Read More

 

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