Analysis of Hunter v Canary Wharf - Case Study Example

In Hunter v Canary Wharf the House of Lords held that the claimant in an act for private nuisance must have a proprietary interest in the land. Lord Hoffman stated: "Once it is understood that nuisances "productive of sensible personal discomfort" do not constitute a separate tort of causing discomfort to people but are merely part of a single tort of causing injury to land, the rule that the plaintiff must have an interest in land falls into place as logical and indeed, inevitable". Discuss and critically assess the implications of this decision with regard to the tort of nuisance and with particular regard for recent developments under the Rule in Rylands v Fletcher. Disputes regarding interference with the enjoyment and use of land are regulated by the law of nuisance1. The law distinguishes between private and public nuisance and for the purposes of this paper the analysis will be limited to private nuisance claims. The inherent ambiguity as to what conduct will constitute an interference with the use and enjoyment of land in order to justify an action in private nuisance has facilitated the piecemeal development of legal principles in this area2. This is further evidenced in context of environmental litigation3. Moreover, it has been widely extrapolated the law of nuisance is the most significant course of action in respect of environmental disputes4. However, commentators have criticised the multifarious limitations in private nuisance claims, which further render inherently complex cases difficult to be brought to court with any realistic prospect of success5. Indeed, the very nature of a claim being available only when environmental damage directly affects the use and enjoyment of another person's land intrinsically limits the parameters of nuisance6. Furthermore, the decision in the case of Hunter v Canary Wharf7 renders private nuisance claims dependant upon demonstration of a proprietary interest in the land, which has fuelled academic debate regarding the decision's implications for private nuisance claims8. The focus of this analysis is to evaluate the implications of the decision in the Hunter case, particularly in context of the development and application of the strict liability rule in Rylands v Fletcher9. Firstly it has been submitted that the arbitrary nature of judicial developments in private nuisance claims would alternatively be better addressed by the strict liability rule as established in Rylands v Fletcher10. The Rylands rule relates to the situation where a non-natural land user keeping something on their land, which is likely to escape, and as such, is stated to be kept at their own peril11. If the "thing" does escape, the rule affirms that the individual will be liable for all damage that is a natural consequence of the escape12. In the Rylands case itself, the defendant was a mill owner who had employed an independent contractor to build a reservoir on his land. The contractor had been negligent in failing to block a disused mine shaft that he had come across on the site. As a result, when the reservoir was filled, water escaped causing damage. As the contractor was independent the landowner was not liable for negligence or vicariously liable for the contractor's conduct13. In delivering the judgement for the claimant, Blackburn J asserted "the rule only applied to a thing which was not naturally there14". Furthermore, Lord Cairns presiding in the House of Lords additionally qualified the applicability of the Rylands rule to where the defendant had actually brought the thing onto his land15. The rule was further developed in the decision in Reads v Lyons16 by determining that one cannot claim for personal injuries in private nuisance but only for the discomfort caused to the use of the land itself17. The essence of the rule is that it is a form of strict liability for the escape of 'things' likely to cause damage and which have been brought onto land18. On the one hand the strict liability rule in Rylands leans towards legal certainty in this complex area of law by setting out strict requirements for tort liability under the law of obligations. Alternatively, the very nature of the rule potentially excludes meritorious claims in private nuisance where the thing causing damage hasn't been brought onto the land and negligence cannot be established; thereby perpetuating the common criticism of tort law that claimants are unequally compensated notwithstanding cases where equal harm is actually suffered19. In any event, whilst the rule in Rylands v Fletcher has been propounded by some as a valid yardstick against which to evaluate private nuisance claims, commentators have argued that the decision in Hunter v Canary Wharf20 which determined that only individuals with a proprietary right in the land can claim in private nuisance, has effectively limited claims and in turn undermined the strict liability rule in Rylands v Fletcher21. If we consider case law pre-Hunter, the basic underlying principle of the tort of private nuisance has been the interference of one's right to peaceful enjoyment of land22. As such, the tort covers damage to the land, not the person. This was established in the leading case of Malone v Laskey23, where it was held that a person occupying property as a licensee was not entitled to bring an action in nuisance against a neighbour. However, the decision in the case of Khorasandjan v Bush24 acknowledged that the Malone decision left potentially valid claims restricted on grounds of proprietary interest25. In the Korashandjan case, the factual scenario meant that under the Malone principle the claimant would have had no claim as licensee. As such, the Court of Appeal determined on policy grounds that the person who had suffered damage in nuisance could bring a claim if they had a "substantial link" to the land26, which further included relatives of landowners in this case27. Whilst remedying the discriminatory nature of the Malone decision, the Khorashandjan decision arguably swung the pendulum too far in the claimant's favour, with criticisms regarding the ambiguity as to what constituted a "substantial link" with the land28. This was further evidenced by the limitless scope of potential claimants falling within this category. For example, in the case of Crown River Cruises v Kimbolton Fireworks29, the claimants were licensees of a river barge and not even lessees, yet were still held to have a "substantial link" under the Khorashandjan principle in order to satisfy the eligibility criteria to bring a private nuisance claim30. Furthermore, whilst it has been argued that such a decision is clearly in line with the strict liability rule in the Rylands decision31, the combination of the Khorasandjan decision in context of the rule in Rylands has nevertheless created an inherent conflict within nuisance law with regard to the uncertainty as to who can make a complaint; which in turn has led to ad hoc judicial decision making, importing ambiguous concepts into the tort of private nuisance often motivated by policy and moral justifications32. Alternatively, it has been argued that from an environmental perspective, the extension in the Khoransandjan decision could have provided scope for the development of less private environmental interests outside the parameters of public nuisance and strict liability33. However, the Khoransandjan decision was subsequently overturned by the decision in Hunter v Canary Wharf34. In the Hunter case, the House of Lords reiterated as a general principle of nuisance law that it was a tort against property, and as such the ambiguity of the Khorasandjan "substantial link" test undermined the very nature of the tort35. Moreover, the House of Lords further asserted that in order to bring a private nuisance claim, the claimant had to satisfy the pre-requisite of having a proprietary interest in the land affected36. The initial implication of the Hunter decision is clearly the further limitation of claims in private nuisance. Furthermore, the limitations regarding eligibility for instituting a private nuisance claim creates uncertainty regarding the parameters of the strict liability rule in Rylands. Moreover, whilst the judicial rationale of the House of Lords in Hunter was unequivocal and intended to curb the potential floodgate results of the Khorasandjan decision, uncertainty remains with regard to who can make a claim in private nuisance37. Indeed the Hunter decision itself indicated that mere occupation of land would be accepted as a proprietary interest for the purposes of a private nuisance claim, which is clearly paradoxical to established legal principles.38. For example, a recurrent problem arises from cases where the courts have accepted that it is a nuisance to prevent someone getting access to land in contrast to interference with use of the land39. The blurring of distinction between the two has obfuscated the underlying purpose of nuisance law protection40. This has been particularly evidenced in cases involving picket action in industrial disputes41. For example, in the cases of Thomas v NUM42 and Newsgroup v SOGAT43 it was accepted that pickets caused a nuisance in preventing non-striking workers getting to their place of work44. However, in none of these cases had the victim any proprietary interest land and the cases concerned rights of access to land and not the right to enjoyment and use of land45. Nevertheless the decisions were formulated as falling under the ambit of private nuisance. It remains unclear how such decisions would be determined post Hunter, however the judicial rationale of Hunter indicates a propensity towards wide interpretation of proprietary interest outside the boundaries of established legal principles, which in turn further opens up the possibility of creative judicial interpretation of what constitutes "nuisance". Secondly, whilst the House of Lords' rationale in the Hunter decision appears to be rooted in nuisance protecting interference with land, it remains unclear as to what exactly constitutes a proprietary interest in land for the purpose of nuisance claim46. For example, in the case of Pemberton v Southwark LBC47, the Court of Appeal determined that a tenant, who had reverted to being a trespasser by virtue of non-payment of rent, nevertheless had standing to bring a claim in nuisance48. However, the effect of this decision effectively grants a trespasser proprietary right de facto, which is a direct contradiction of established property law principles. Alternatively, this decision further raises the question as to whether acquiescence of trespass confers the proprietary right, or whether a trespasser who used to be a tenant continues to have a proprietary interest in the property49. Both possibilities are clearly incoherent and further perpetuate the uncertainty as to what constitutes a proprietary interest for the purpose of private nuisance claims50. Indeed, the implications of the Hunter decision appear to have merely replaced the Khorasandjan rule with another uncertainty, which again facilitates wide judicial interpretation in this area of law on an ad hoc basis. Herein lies the problem; the very nature of nuisance arguably lends itself to needing a case by case determination, particularly in context of environmental and industrial development. However, this in turn directly undermines the enshrined concept of legal certainty and precedent. Moreover, it raises the question as to the merits of strict liability rule in Rylands in the present era51. Furthermore, the uncertainty of the Hunter decision is further compounded by the fact that even if an individual can establish locus standi to bring a claim in private nuisance, Thesiger J presiding in the case of Sturges v Bridgman52, highlighted the subjective nature of what constitutes interference with the use and enjoyment of land by stating "what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey"53. The underlying sentiment of this decision further highlights the arbitrary nature of private nuisance claims by indicating a presumption of limits on private rights to enjoyment and use of land of individuals living in urbanized and industrial areas; which is ironic as it is these very areas which are most likely to be affected by potential nuisance issues54. Moreover, whilst the Hunter decision may have theoretically limited private nuisance claims to those with a proprietary interest; the denial of nuisance remedies to those without such interests could lead to problems under the Human Rights Act 1998, which expressly incorporates the European Convention of Human Rights (ECHR) into UK law55. In particular, Article 8 of the ECHR demands "respect for private and family life" and if an individual occupies a home as a licensee or trespasser, the implications of Article 8 indicates that such a person would still have a claim under Article 8. Indeed, this appears to have been accepted in the case of Mckenna v British Aluminium56. Furthermore, it will be interesting to observe how the rule in Rylands v Fletcher will be applied under the ECHR, in context of Article 8. This analysis demonstrates above all that the law relating to private nuisance is inherently complex and further compounded by the piecemeal judicial development of the law on an ad hoc basis. The Hunter decision reversed the pendulum of the Khorasandjan decision however failed to remedy the ambiguity of the "substantial link" test by obfuscating established legal principles which determine proprietary interest in land. As such, the Hunter decision simultaneously limits and widens the possibility of private nuisance claims, which are ultimately reliant on judicial discretion often motivated by policy reasons. Alternatively, the Hunter decision arguably limits the applicability of the rule in Rylands v Fletcher however the real implications of this remain to be seen in light of the wide approach taken with regard to the definition of "proprietary interest" as evidenced by the Pemberton decision. As highlighted above, the underlying problem with establishing a cohesive legal framework for private nuisance claims is rooted in the fact that the very concept of "nuisance" is subjective and continuously redefined by rapid developments in the industrial world and socio-environmental issues. As such, the underlying floodgates prevention argument of the Hunter decision is misguided and arguably misses the point. Indeed, the paradoxical result of Hunter is to arguably widen the ambit of potential private nuisance claims with no meaningful guidance to legal practitioners regarding the likelihood of success of any claim from the outset. Whilst the complex nature of what constitutes nuisance is clearly outside the expertise of the judiciary, it is submitted that official discussion is needed to consider the implementation of a cohesive legal framework for private nuisance claims, particularly in light of the Hunter decision and the ECHR. In the meantime, the implications of the Hunter decision will continue to reverberate with uncertainty in the law of private nuisance claims. BIBLIOGRAPHY Stuart Bell and Donald McGillivray (2005). Environmental Law. 6th Edition Oxford University Press. John Hodgson & John Lewthwaite, (2007) Tort Law. 2nd Edition, Oxford University Press Mark Lunney & Ken Oliphant., (2007). Tort Law: Text and Materials. 3rd Edition Oxford University Press. Jenny Steele., (2007) Tort Law: Text, Cases and Materials. Oxford University Press. W. Boom., H. Koziol. & C. Witting., (2004). Economic Loss (Tort and Insurance Law). First Edition, Springer. The European Convention of Human Rights is available at www.echr.coe.int Read More