Nuisance and Trespass - Essay Example

?NUISANCE AND TRESSPASS Outline Introduction Nuisance Abating nuisance Public nuisance Damages An injunction Trespass The actions that amount to trespass Conclusions and advice Introduction David has just bought his first house where he now lives with his wife and children. The house is located on Highfield Road opposite a factory unit (situated on Highfield Road in the Edward’s Industrial estate) owned by Harrington & Nephew Ltd. This is an area in which pre-cast concrete units are manufactured. Harrington & Nephew Ltd. was recently successful in winning various contracts which have resulted in the factory operating all day and throughout the night. This has caused David and his family to lose sleep through noise from the factory operations and noise from wagons coming to and leaving the factory. This is the background situation in this case where recent developments like the winning of many contracts for Harrington & Nephew Company has resulted in interference with the normal life for David and his family. David’s family has suffered a lot of harm from these recent developments. They include The rose tree that they were given on the day of their wedding has dried up. David’s wife has developed an allergy due to the dust that is emitted fro the factory. David’s family cannot sleep due to the noise that never ends day and night. The paintwork on David’s car has been destroyed because of the chemical smuts emitted from the factory’s chimney. As a result of the happenings described above, Wally, David’s son has stormed the factory and goes around searching for the manager so that he may give him apiece of his mind. Finding that the manager absent, he causes chaos and in the process a window breaks. The secretary insists that he leaves the factory but he defies. This paper is going to look at the liabilities that the construction company may have to David and his family and whether there may be any defences or remedies for the same. It is also going to explore whether the company may have any case against the family. The major concerns of the paper will be nuisance and trespass. After having explored what these two entail, we will advise Harrington & Nephew on any liabilities that they may have on David’s family. Nuisance Nuisance can be classified into either private or public. Private nuisance is committed where one person who is usually the defendant substantially and unreasonably interferes with another person’s right to use and enjoyment of their land. In our case, this is what happening to David’s family. Unlike trespass, interference can amount to a private nuisance even if it is not direct or intentional. A person’s use and enjoyment of their land might be interfered with by things such as dust, noise or vibration (Lemmon V. Webb (1894)). However, claims relating to an interference with privacy do not amount to nuisance as only Complaints about ordinary and reasonable uses of land are held viable. Private nuisance is therefore not available where the land is used for a particularly sensitive purpose or the one claiming to be affected is usually sensitive. In order to determine whether the interference is substantial and unreasonable, the court might consider factors like the locality and standard of comfort that one living in the area where the property is situated might reasonably expect, the duration, frequency or extent of the interference or the time of day. The court might also take into account whether it was possible for the defendant to take precautions to prevent causing the nuisance (JSTOR, 1954 P. 24). It is not a defense for the defendant to say that the nuisance existed before the plaintiff moved into the neighborhood. Public nuisance This is a different kind of nuisance that occurs when a person endangers the life, health, property morals or the comfort of the public or obstructs the public in the exercise of enjoyment of rights. Again, the interference has to be both substantial and unreasonable. Actions in public nuisance may be brought on behalf of the community by the Attorney-General, or by a person who has suffered damage over and above that suffered by the public in general. It is rare for public nuisance actions brought by the public to be successful, as it is difficult to prove that one person has suffered special loss. For example, in Ball v. Consolidated Rutile Ltd, a mining company allowed earth and slurry to fall into a watercourse, interfering with fish stocks. A group of commercial fishing operators took action against the company in public nuisance. However, the court refused the claim on the basis that the watercourse was open to all members of the public to fish and therefore the commercial fishing operators suffered no special loss. Abating nuisance This is the attempt that is made in order to stop the continuity of the act of nuisance. Where a person has a cause of action in private nuisance, that person may be able to enter the property from where the nuisance is emanating to stop the source of the nuisance. However, he must give a notice to the person causing the nuisance before entering the land, unless there is an immediate threat to life and health. It is highly recommended that, in case that happens one should seek legal advice before abating a nuisance. This is because if the matter later goes to trial, and in the court’s opinion, no nuisance had been committed; one may be guilty of trespass Damages This is the usual remedy for common law causes of action. Damages are an amount of money that the defendant must pay to the plaintiff as compensation for the damage or injury caused by the defendant’s conduct. The sum of damages awarded will be calculated based on the estimated cost of returning the plaintiff to the same position they would be in if the defendant had not engaged in that conduct. Unfortunately, damage to the environment generally, or to a specific species or population, is quite difficult to quantify in monetary terms. In addition, as the common law is developed to address interferences with private rights, harm to the environment, unless it also affects the plaintiff’s interests, will not be compensated for with damages. . An injunction An injunction is a discretionary order of the court compelling a person to do or stop doing a particular act. As long as the plaintiff has evidence that they will suffer harm from the defendant’s actions, a court can order an injunction even if the plaintiff has not yet suffered any harm. Injunctions are awarded most frequently in trespass and nuisance cases where there is a risk that the damaging conduct will continue or be repeated. An injunction can be awarded by the court at the conclusion of the case if damages will not adequately compensate the plaintiff for the loss that they have suffered. That is usually referred to as a final injunction. In addition, plaintiffs often request that the court issue an injunction to stop any damage being done to them while the court case is being heard. This is an interlocutory injunction. An interlocutory injunction will only be issued by the court where the plaintiff can show that: There is a legitimate cause of action before the court; There is a real risk of further serious injury to the plaintiff if the injunction is not granted; An injunction is favored by the balance of convenience. This balances the interests of the plaintiff, the defendant and the public. Damages would not be able to compensate the plaintiff. Before issuing an interlocutory injunction, the court usually requests that the plaintiff to give the court an undertaking that the plaintiff can pay for the losses which the defendant will suffer if the interlocutory injunction is granted but the plaintiff does not eventually succeed in their case. Such undertakings can be for substantial sums of money, especially if it is halting things like construction or dredging work, where the contractors are engaged and waiting for work to be allowed to start again. Trespass This is a crime committed when a person enters into another’s piece of land intentionally or negligently without permission. Trespass can subsequently occur when one legally enters another’s land but while on that land commits actions that are not in line with the expectation s of the owner. For example, if the person refuses to leave when asked by the owner of the land. Either way, trespass is unjustifiable as it brings interference. The claimant must prove that they were in possession of the land during the trespass act. For example, in the case of Graham v. Peat (1861), the claimant was a lessee whose lease was void though still able to sue trespass because he was in possession of the land. The actions that amount to trespass The direct action against another persons property such as invasion, allowing ones animals to stray into another’s land all amount to trespass. At times, the remedy for direct invasion may be nuisance. In Lemmon V. Webb (1894), tree roots allowed to grow into a neighbor’s land. This was held not to be trespass but nuisance. This was an indirect action. In Esso Petrol Co v. Southport Corporation (1956), oil was discharged from the defendant’s ship at the sea in order to lighten the ship, the oil was carried by a tide to the claimant’s shores where it caused damage. It was held that the action was too indirect to amount to trespass. Conclusions and advice Harrington & Nephew Ltd have the liability of committing nuisance against David and his family. This is because the company is hindering that family to enjoy the garden that they bought. The work at the construction which is taking place day and night is also hindering the family from sleeping. Still, the dust emitted from the site has made David’s wife to suffer an allergy problem and she now has to use an inhaler all the time. The dust has even led to the drying up of the rose tree that David and his wife were given 15 years ago. All these concerns amount to nuisance as they have interfered with the lives of David and his family. Harrington & Nephew Ltd are therefore liable. If the matter was to be handled in court, the company would have to compensate the family for all the loss suffered. The Court may even issue an injunction for the company to halt its operations until the case is settled. On the other hand, Harrington & Nephew Ltd may sue David’s son for trespass. He was so incensed because the paintwork on his car has been damaged by the chemical smuts emitted from the factory’s machine. He therefore stomps the company premises and causes havoc and in the process a window breaks. In a nut shell, Harrington & Nephew Ltd stands liable to David, s Family for nuisance but David’ s is liable to them as well for trespass. References Darbyshire. (2010). Nutshells English Legal System. Sweet & Maxwell. Esso Petroleum Co. V. Southport Corporation. (1995, June 12). Retrieved April 12, 2012, from Online Publications: http://wn.com/Esso_Petroleum_Co_v_Southport_Corporation Holmes, O. W. (2010, May 11). Common Law. Retrieved April 12, 2012, from Oliver Wendell Holmes: http://books.google.co.ke/books?id=5yCbLJX0sMoC&pg=PA180&lpg=PA180&dq=graham+v.+peat+case+brief&source=bl&ots=cVPZRVAN9j&sig=RxxqTBscAIvklifr0IrtvBz4oHU&hl=sw&sa=X&ei=kLGNT-aoKcrX8QPLpOTOCw&ved=0CBsQ6AEwAA#v=onepage&q=graham%20v.%20peat%20case%20brief&f=f JSTOR. (1954, November 17). The Modern Law Review. Retrieved April 11, 2012, from Notes on Cases: http://www.jstor.org/discover/10.2307/1091006?uid=3738336&uid=2129&uid=2&uid=70&uid=4 Justia. (2001, June 12). Poole v. Longue. Retrieved April 14, 2012, from Justia Supreme Court Center: http://supreme.justia.com/cases/federal/us/36/185/case.html Liverpool, U. o. (2011, June 12). Torts and Liabilities. Retrieved April 06, 2012, from Notes on Queensland: http://www.docstoc.com/docs/9154014/Torts-and-Libailities-Notes-Queensland# Skellern, C. (2000, January 13). AIE-Law Case. Retrieved April 12, 2012, from Lemmon/Webb: http://www.users.globalnet.co.uk/~skellern/resources/case_law/aie_case_lw.html Read More