Public Nuisance - Case Study Example

Introduction Nuisance is an actionable tort. Action varies depending on whether it is a public or private nuisance. While public nuisance is a crime, private nuisance is a civil wrong. It is defined as an action or state of affairs substantially or unreasonably interfering with a claimant’s land. Land is therefore protected against three possible types of interests i.e protection of land per se; protection of use of land; protection of enjoyment of land. Though the last two are distinct rights, they are inter-related and they can be violated at the same time as in the case Dodds Properties1 wherein interruption to use of and damage to, a garage caused by defendant’s pile-driving operations. Further, it amounts to tort of private nuisance if the right to enjoyment of land is affected by diminution in the value of land. However this was only an obiter.2 It should be noted that the damage must be to the land and not merely chattels that happen to be on the land as was discussed in Anglian Water Services Ltd.3 wherein Stanley Burnton J did not consider the interruption to the supply of gas as interference with the use of land as appliances could always be replaced. It is therefore clear that not every interference is actionable as nuisance. Minor irritations in the neighbourhood without toleration amongst neighbours cannot be brought to action under nuisance. Interference to a reasonable extent that is quite natural from a neighbour should therefore be tolerated. Such excusable interferences are generally in the nature of affecting quite enjoyment of the land. A principle of give and take and let live was expressed in Bamfond case as early as in 1862.4 The give and take principle was also echoed by Lord Goff in Cambridge Water Co case.5 An occasional birthday party in the neighbour’s house till late in the night with attendant noise should therefore not be a nuisance. If every minor irritation is actionable, it amounts to interfering with the freedom of enjoyment one’s own on his own land. It therefore follows that law expects the interference with the claimant’s land or any right or any interest in that land should be substantial and reasonable.6 Although a range of activities that may result in nuisance under tort may include emission of noxious fumes, smoke, noise and heat or production of violent vibrations, not every such smoke or noise can constitute a nuisance. A CD player’s disturbance at a high volume for a fleeting moment caused by a child but quickly turned off by the father cannot constitute a nuisance. A momentary increase in volume cannot constitute nuisance that is substantial or unreasonable. However the magnitude and unreasonableness are context-dependant.7 It should be however noted that reasonableness of nuisance should be viewed in the context of not the defendant’s conduct but the outcome of the defendant’s conduct unlike in the case of negligence wherein the defendant’s conduct should pass a reasonable man’s test.8 In nuisance, court is concerned with the reasonableness of the harm done to the claimant.9 In the instant case, the sawmill owner Ozzy operates his machinery during the night because of which his neighbour Sharon is unable to sleep in the night. This happens in spite of Ozzy’s landowner cautioning him about dust and noise which he should avoid. Further, due to the defective dust extraction equipment at Ozzy’s saw mill, dust coming out of his mill spoils the entire village by being blown over. Besides, Kelly’s garden is damaged ruining a large number of sensitive plants grown in her garden. Now the case of Ozzy, Sharon and Kelly shall be examined whether Sharon and Kelly are entitled to claim private nuisance against Ozzy in the light of the ingredients of private nuisance seen above and to be discussed further below. Continuous interference First of all, as said above, the interference should be just not momentary but should be a continuous one with the claimant’s use or enjoyment of land. In this case, Ozzy’s activities are obviously interfering with the right and use of Sharon and Kelly’s use of the respective lands in the strictest sense of the term “continuous”. There is no sign of Ozzy’s abating his activities. As defined in Hunter v Canary10, Ozzy’s activity is considered private nuisance that is a continuous, unlawful and indirect interference with use or enjoyment of Sharon’s and Kelly’s lands, or of some right over or in connection with them. The case of Hunter also classified private nuisance into three kinds namely (1) nuisance by encroachment on a neighbour’s land, (2) nuisance by direct physical injury to a neighbour’s land and (3) nuisance by interference with neighbour’s quite enjoyment of his land. Accordingly, nuisance to Sharon falls under the third category and nuisance to Kelly falls under the second category. Remedies for private nuisance are injunction and compensation by damages for which proof of damage is generally required as held in Cambridge Water v Eastern Counties Leather11. Although continuous occurrence of the interference is an essential ingredient to constitute a private nuisance as held in De Keyser’s Royal Hotel’s case 12 where in even the temporary building activity involving noisy pile driving (context-dependent), single act also could constitute a private nuisance as established in the two cases namely British Celanese v Hunt (Capacitors) Ltd 13and Crown River Cruises v Kimbolton Fireworks.14. In the former, a foil had blown from defendant’s land damaging the electricity sub-station resulting in power cut to an industrial estate. Since this had happened even earlier on a few occasions owing to the defendant’s storage practice, trial judge held it to a private nuisance. The latter involved a fire-work display lasting for 15-20 minutes with the resultant debris of flammable nature caused fire to the nearby property. This was held to be private nuisance. Thus, the cases of Sharon and Kelly do have proof of damage as well as satisfy the condition of duration of interference for private nuisance. Though proof of damage to the land and plants caused by the dust is visible, noise created by Ozzy’s machinery is quite understandable and perceptible besides by corroboration by witnesses and documentary evidence. Second requirement is that the interference must be unlawful and unreasonable. Sharon and Kelly must prove that Ozzy was unreasonable thus making it unlawful. Ozzy operated the machinery during the night and defective machinery caused dust to pollute the surroundings and in fact the whole village which aspect constitutes even public nuisance. Having been a public nuisance is proof enough for the claimants and the unreasonableness of Ozzy’s act thus going beyond the concept of ‘give and take’ spirit among the neighbours as held in Cambridge Water Co v Eastern Counties Leather.15 Besides, Ozzy has also violated the rule of sic utere tuo ut alienum non laedas (So use your own property as not to injure your neighbour's).16 Further there are factors such as locality, sensitivity of the claimant, utility of the defendant’s conduct, malice and the state of the defendant’s land. which the courts would look into, in order to assess the reasonableness of the defendant’s use of land. Locality In Sturges v Bridgman17, the judge expressed "What would be a nuisance in Belgravia Square would not necessarily be so in Bermondsey."18 This is context-dependant requirement stated elsewhere. The case involved Bermondsey which was the place with concentration of tanneries who used excreta in the tanning process and the area was accustomed to noise and pollution of heavy industry and naturally this state of affairs cannot provide a ground for claim of private nuisance for a resident in the locality. With this in view, Ozzy’s place is unlike Bermondsey and the village being predominantly residential, the manner of use of land by Ozzy constituted private nuisance as it is not located in an industrial locality. Sensitivity of the claimant Sharon and Kelly cannot be said to be oversensitive claimants who generally cannot succeed in claim of private nuisance. A case that can be cited to explain this is Robinson v Kilvert (1889)19 wherein the claimant’s goods being abnormally sensitive paper stock got damaged due to heat from the adjoining premises which would not have affected an ordinary paper. This means that a claimant cannot claim by the reason of being in a vulnerable position. In the present case, Sharon and Kelly cannot be considered as oversensitive claimants as the noise and dust causing the private nuisance could not be averted under any circumstances. A parallel to the present case of Kelly can be drawn from McKinnon Industries v Walker 20 where private nuisance was established as a result of fumes from defendant’s factory damaging the claimant’s delicate orchids. Kelly’s plants cannot be considered as chattels. The utility of the defendant's conduct This refers to the possible disadvantage to the locality if the injunction is granted to Ozzy’s saw mill. There is no case that Ozzy’s saw mill is indispensable to the village and hence the community should put up with the hardship. Moreover, it is a clear case of negligence of the defendant Ozzy in operating defective equipment and avoidable operation during the night hours. Even if indispensable, these are the factors which are within Ozzy’s control to be rectified. Hence on this score also, Sharon and Kelly have a good case for claim. Malice Though malice is not a necessary ingredient to constitute a private nuisance, its presence can be useful to establish unreasonableness. In the case of Ozzy’s there is no malice but sheer negligence is obvious. Knowingly allowing the state of affairs to continue can be equated to malice. Thus in Christie v Davey (1893)21, defendant made noises to disrupt the music lessons being held in his neighbour’s house with the malicious intent of spoiling the classes. Court granted injunction restraining the misbehaviour of the defendant. On the other hand, a legal act by the defendant though affected the claimant’s prospects cannot be a private nuisance as held in Hollywood Silver Fox Farm v Emmett [1936] 2 KB 468.22 The state of the defendant‘s land It is the duty of the defendant to upkeep his land or rather his saw mill in the present case, in such a manner that it would not cause damage or danger to the adjoining land. In the case of Leakey v National Trust23, the defendant failed to take steps to prevent a big mound of earth on his land from sliding to the neighbour’s property though due to natural process of erosion and was held liable to have caused private nuisance. However in the case of Holbeck Hall Hotel v Scarborough24, it was held that the danger must be patent and not latent to constitute a liability. As to the burden of proof on the claimant, physical damage to the property or land or injury to health such as headaches owing to noise which interfere or prevent the claimant from enjoying the use of his land must be proved by him. Thus in Bliss v Hall (1838)25, it was a clear case of fumes and smells from candle making spreading to the adjoining land. And in Halsey v Esso Petroleum [1961]26, claimant who was the neighbour was being disturbed in his sleep because of noise and vibrations and damage to clothes from acid smuts from the defendant’s plant. Both the cases can serve as precedents for Kelly and Sharon respectively to make successful claims from Ozzy. Who may sue? Only persons having proprietary interest or having licence as tenant in the affected land can make a claim of private nuisance. If Sharon or Kelly are the land owners or tenants or having beneficial interests on the land, they can sue Ozzy as was held in the cases of Malone v Laskey 27[1907] 2 KB 141 and Hunter v Canary Wharf28. In the former, wife was not held eligible to make claim for the injury she suffered due to private nuisance of the neighbour for the reason that she was not the owner of the land. However, in the latter case, it was over-ruled and beneficial owner of matrimonial home was held eligible. Who may be sued? Any person whether an occupier or otherwise causing the nuisance can be sued. In the case in question, not only Ozzy but also his landlord can be sued by Sharon and Kelly. 29 Defences Possible defences are prescription i.e if the nuisance has continued for twenty years without interruption, no claim can be made as was held in Sturges v Bridgman.30. It should be a statutorily authorised act expressly or impliedly. Thus when Government proposed to construct a refinery through an act of parliament, it could not be contested as held in Allen v Gulf Oil [1981]31. Conclusion In view of the foregoing, Sharon and Kelly are entitled to injunction restraining Ozzy from operating the saw mill and also are eligible to claim compensation from him for the damages caused by the noise to Sharon and by dust to Kelly. Although Sharon has no complaint of the dust engulfing her land, it must be presumed as part of the public nuisance, though Sharon is entitled to claim it as private nuisance. As for the regular retaliation by Sharon’s nanny by telephoning Ozzy but keeping silent without replying Ozzy’s picking up the phone, it does not absolve defendant of his liability. Bibliography Books Murphy John and Street Harry, 2007, Street on torts, Oxford University Press, p420 Harpwood Vivienne, 2000, Principles of tort law, 4 ed, Routledge, p 239 Weinrib Earnest J, 2003, Tort Law: cases and materials, Emond Montgomery Publication p 17 Cases A-level-law.com- Law of Tort Page Allen v Gulf Oil [1981] 1 All ER 353 Anglian Water Services Ltd v Crawshaw Robbins & Co 2002, WL 31523191 Bamfond v Turnley [1862] 3B & S 66 Bliss v Hall (1838) 4 Bing NC 183 British Celanese v Hunt (Capacitors) Ltd [1969] 2 All ER 1253 Cambridge Water Co Ltd v Eastern Countries Leathers Plc [1994] 2 AC 264 Cambridge Water v Eastern Counties Leather [1994] 1 All ER 53 Christie v Davey [1893] 1 Ch D 316 Crown River Cruises v Kimbolton Fireworks [1996] 2 Lloyd's Rep 533 De Keyser's Royal Hotel v Spicer Bros Ltd (1914) 30 TLR 257 Dodds Properties v Canterbury City Council (Kent) ltd [1980] 1 All ER 928 Halsey v Esso Petroleum [1961] 2 All ER 145 Holbeck Hall Hotel v Scarborough BC [2000] 2 All ER 705 Hollywood Silver Fox Farm v Emmett [1936] 2 KB 468 Hunter v Canary wharf Ltd [1997] 2 All ER 426 Leakey v National Trust [1980] QB 485 Malone v Laskey [1907] 2 KB 141 McKinnon Industries v Walker [1951] 3 DLR 577 Robinson v Kilvert (1889) 41 Ch D 88 Sturges v Bridgman [1879] 11 Ch D 852 Walter v Selfe (1851) 4 De G & Sm 315 Read More