Different Kinds of Private Nuisances - Coursework Example

Private Nuisance Private nuisance is a continuous, unlawful interference with the use or enjoyment of private land, while public nuisance has beendefined by Romer LJ as an act which “materially affects the reasonable comfort and convenience of life of a class of Her Majesty’s subjects”1 However, in order to bring an action for damages under either category, it is first necessary to establish that damage has been caused and proof of that damage must be provided. Another requirement for recovery is that the damages should have been reasonably foreseeable. However liability under nuisance arises only in the context of protection of property and where Plaintiffs seek damages for environmental pollution or damage extending beyond the scope of nuisance, it is unlikely to be successful. In the case of Hunter v Canary Wharf2 Lord Lloyd Hunter set out three different kinds of private nuisances: (a) nuisance that occurs through encroachment on a neighbor’s land (b) nuisance caused by direct physical injury to a neighbor’s land and (c) the nuisance caused by interference with a neighbor’s quiet enjoyment of his land. Therefore, any action taken by an owner of land that could cause environmental or widespread pollution is unlikely to fall under the specific categories outlined above where nuisance will be actionable. Lord Hoffman in Hunter v Canary clearly specified: “The general principle is that at common law, anyone may build whatever he likes upon his land. If the effect is to interfere with the light, air or view of his neighbor, that is his misfortune.”3 Hence, applying this criterion, it would appear that environmental pollution such as dust, smoke, etc will not impute liability on the owner of property. Moreover, damages caused by nuisance also need to be proved before they will be actionable and in the case of public nuisance, a Plaintiff needs to prove that he or she has suffered damages that are over and beyond what others have also suffered. This in itself is difficult to establish, apart from the need to also establish that the damages could have been reasonably foreseen by the defendant. While it has been held that action must be taken by an occupier of land to take steps to minimize dangers to neighboring lands which could be caused by natural hazards, 4 the actual existence of such dangers must be proved, i.e, the dangers must be patent and not latent if liability is to be established.5 Since most environmental pollution is caused by dust, smoke, air and water borne pollutants escaping into the environment it is only in rare cases that the level of the contaminant may constitute what can be classified as a patent danger; in most cases they are likely to be latent. Moreover, when activities that are complained about under a claim for private nuisance have been expressly authorized by a statute, then a damage action is unlikely to achieve its objective. For example, in the case of Allen v Gulf Oil,6 Parliament had intended for a refinery to be constructed in a particular area and therefore the nuisance which was the inevitable result automatically became inactionable. As Pugh and Eastey point out7, the general rule has been that no action for personal injuries caused due to environmental pollution have not been successful, especially in those instances where the pollution and concomitant nuisance occurs as a result of compliance with statutory authority as was the case in Allen v Gulf Oil. In the case of Kennaway v Thompson8 an individual resident who was able to prove damages occurring as a result of airborne pollution was able to successfully sue in private nuisance, which is one of the few cases where the Plaintiff met with success. However in most cases, using nuisance liability to establish damages for environmental pollution is unlikely to be successful. If the defendants who are causing the environmental pollution are able to show that they were using the best practicable means in carrying out a particular activity, this could also function as a defense to statutory nuisance liability, although this may not be the case with common law nuisance.9 Moreover, Plaintiffs are generally expected to tolerate some levels of nuisance caused by environmental impacts such as dust or smoke and those who try to bring action in such cases may be held to be unduly sensitive, as a result of which their action is likely to fail. Moreover, even in rare instances where damages have been provided, the amount tends to remain small, such as about 500 to a thousand pounds in a year for every year of nuisance that has been suffered, as in the case of Bone v Seale.10 An action in nuisance can also be brought only by a Plaintiff who has an interest in the land, therefore spouses or children of a land owner will also not have any remedy available to them under nuisance law. In the case of Malone v Laskey11, the wife of a land licensee was using the toilet and the lavatory cistern fell on her head. The dislodging of the cistern was caused by the continuous vibration from machinery situated on the neighboring property. However, she was unable to claim damages because she did not have a proprietary interest in the property where she suffered the damage and was only the wife of a licensee who himself did not have any interest in the property. In the case of Khorasandjian v Bush12 the Court of Appeal appeared to overrule this existing rule on requirement of proprietary interest limiting claims in nuisance. In this case, an eighteen year old girl who had no proprietary interest in her mother’s home was able to make a claim in nuisance to prevent harassing calls from her boyfriend and Dillon LJ of the Court of Appeal expressed the view that it would be ridiculous to limit recoveries because of the lack of a proprietary interest by the Plaintiff in the premises where the harassment occurred. However, the House of Lords in Hunter v Canary Wharf overruled this decision of the Court of Appeal and reinstated the rule that some proprietary interest in the property was required to file a claim for damages in nuisance. However it must be noted that he Court did clarify that the wife of a home owner would be able to bring an actionable civil suit in nuisance because she has a beneficial interest in the matrimonial home. But such restrictions that have been placed on recovery of damages under nuisance law make it more difficult for a Plaintiff to recover damages, especially in the case of environmental pollution. One possibility of avoiding nuisance liability limitations is the application of the doctrine of strict liability for inherently dangerous activities which was applied in Rylands v Fletcher.13 In this case it was stated that while a person who owns a piece of land has the right to bring and keep anything on his land, it must not be allowed to escape and cause mischief on his neighbor’s land, unless such an event occurs through a natural calamity or by Plaintiff’s default. But since this did not exist in the Rylands case, strict liability was established. However, this is not the general rule in all nuisance cases and the recent case of Arscott v the Coal Authority14 further shows how attempts to control environmental pollution utilizing nuisance liability are not likely to be successful. This is a significant case in that it reveals that private nuisance will not always provide scope for damages where environmental pollution occurs. The National Coal Board in Wales was placed under pressure to remove colliery spoil heaps from the area when one collapsed at the village of Aberfan in Wales. The colliery spoil was then placed on a nearby field, however the field was a flood plain and placing the spoil contributed to periodic flooding of the area and of residents’ houses. The residents filed suit for nuisance on the grounds that the scheme had created a nuisance due to the periodic flooding of their homes which occured. The suit was a private nuisance claim whereby the residents claimed that the NCB scheme had caused property damage, and therefore strict liability would ensue. However, in his judgment, Laws LJ held that the defence of the “common enemy rule” would hold good to protect the defendants from liability, and that another criterion to be applied was that at the time the spoils were placed on the field, the resulting damage was not foreseeable. The common enemy rule supports a landowner’s right to defend his land from an enemy that he and his neighbor face together, therefore the Council had the right to protect its own land from flooding, irrespective of whether the scheme caused the flooding of resident homes or not. Furthermore, Laws LJ also held that when the scheme was implemented, it was not reasonably foreseeable that the residents’ houses would flood, therefore the defendants could not be held strictly liable. According to Lord Goff, it is necessary to demonstrate the foreseeability of harm caused due to the nuisance before damages can be claimed, both in the case of private and public nuisance.15 Lord Goff also referred to a reasonable user of land as the “control mechanism” in deciding whether damages were due in nuisance cases, as a result of which over sensitive users claiming damages in nuisance will not have their claims entertained. However, in the Arscott case, Laws LJ clarified this further by stating that a landowner cannot be held liable for the consequences of actions that he takes in accordance with what could be construed to be a natural use of his own land, unless in some way the manner of use of the land or the extent of that use could be deemed to be unreasonable. Hence this further limits liability for nuisance, which can be used only for protection of individual property rights. The case of Arscott is significant because nuisance becomes actionable when damage occurs; however nuisance liability is concerned with property rights and the common enemy rule will apply in protection of property. Therefore, the residents of Aberfan were unable to successfully claim damages for the environmental impact and damage caused to their properties, since this arose in contravention of the Council’s right to protect its own property. Hence, in conclusion, it may be noted that there have been some instances where damages have been claimed in nuisance, both under private and public nuisance. However such liability is connected to the actual physical interference with a neighboring land owner’s right to peaceful enjoyment of his property. The scope of nuisance liability does not extend into the less tangible areas of damages that are caused, such as environmental pollution caused by dust, smoke or other forms of pollution. In view of the fact that such pollution may also be exacerbated in many cases by natural forces over which a landowner may have no control, getting damages is more difficult, unless it can be established that the pollution that occurred was willfully caused by the landowner in which case, strict liability may be established. Bibliography * Pugh, Charles and Easty, Valerie, 1993. “Toxic torts and group actions.” New Law Journal, 143 (6616): 1293 Case law cited: * A-G v PYA Quarries (1957) 1 All ER 894 * Allen v Gulf Oil (1981) 1 All ER 353 * Arscott v Coal Authority (2004) EWCA Civ 892 * Bone v Seale (1975) 1 WLR 797 * Cambridge Water v Eastern Counties Leather (1994) 1 All ER 52 * Holbeck Hall Hotel v Scarborough BC (2000) 2 All ER 705 * Hunter v Canary Wharf (1997) 2 All ER 426 * Kennaway v Thompson (1980) 3 All ER 329 * Khorasandjian v Bush (1993) 3 All ER 669 * Leakey v National trust (1980) QB 485 * Malone v Laskey (1901) 2 KB 141 * Rylands v Fletcher (1868) LR 3 HL 330 * St Helen’s Smelting Co v Tipping (1865) 11 HL 642 Read More