The topic of the thought of nuisance. This is number four in the syllabus. Unit 2, module 1. These are private and public nuisance. So private nuisance refers to the unlawful interference with a person's use or enjoyment of land or some right over or in connection with it.
So in order to succeed in an action for private nuisance, damage must normally be proved by the claimant, the person bringing the action. In public nuisance, the claimant must show that he has suffered some particular damage over and above that suffered by the general public. In private nuisance, he must show sensible material injury to his property or substantial interference with his enjoyment of his land.
Actual damage need not be proved in three specific cases. These are where damage can readily be presumed. For example, water dripping from a neighbor's house into the claimant's adjoining land.
B. Where the defendant interferes with the claimant's easement or right of access. And C. Where harm to the claimant is reasonably fair to be imminent, though none has actually occurred, and an injunction to remove the nuisance to prevent injury is sought.
So there are three main types of damage when it comes to the action of private nuisance. That's physical damage, amenity damage and denial of an easement, profits or a right of access. So we're going initially with physical damage to property.
A claimant will normally succeed in a claim for nuisance where there has been damage to his physical property. The claimant has an easier time in nuisance or in proving his nuisance when he can show sensible material damage to his property. Sensible material damage refers... to such damage which is not minimal and which causes a reduction in the value of the claimant's property so in the case of saint helen smelting company and tipping the claimant proved that his trees and shrubs had been damaged by the fumes of the defendant's copper smelting works.
It was held by the House of Lords that the plaintiff's action in nuisance succeeded since they had been sensible material damage to his property. An occupier is entitled to expect protection from physical damage to his land no matter where he lives. Another consideration is abnormal sensitivity of property. And where it can be shown that the plaintiff's property is more sensitive than normal, it is unlikely that he would win his case. This is still under the topic or the heading of physical damage to property.
So in the case of Robinson and Clivewood, The plaintiff had in his possession and in his storage unusually sensitive paper and this paper was damaged by the heat of the defendant's cellar. It was shown that ordinary paper would not have been affected. The court held that the defendant was not liable in nuisance because the claimant's property was unusual and it would have been unfair to punish the defendant for this. So the second type of damage that we mentioned was amenity damage.
This is interference such as noise, smells, dust and vibrations which interfere with the use and enjoyment of land without physically damaging the property. A number of factors must therefore be considered before a plaintiff can succeed in an action. for nuisance under amenity damage. So the factors to consider are 1. The nature of the locality.
So, 1. Nature of locality, or the locality where the nuisance arose. Except in cases of material damage, actions in private nuisance for interference with enjoyment of land, the primary question is, The question to be considered is whether the defender's activity was reasonable according to the ordinary usages of that locality. On the other hand, locality is not relevant to claims for physical injury to property. Because that will fall under physical damage.
So in the case of Greenwich and Barbados Light and Power Company, In this case, the plaintiff owned a number of apartments. He occupied one of them and rented the others out to tourists. He complained that the defendant's power station discharged offensive smoke and fumes and caused excessive noise which caused annoyance and discomfort to himself.
and his family and that he had suffered loss in the business of letting his apartments. He called three visitors to the island as witnesses in support of his allegations. The court held, in determining whether or not an actionable nuisance existed, that the court was to apply the standards of the ordinary, reasonable resident of the particular district. Since there was no evidence that such persons were inconvenienced by the defendant's activities, the defendant was not liable in nuisance. In the case of Thompson Schwab and Kostacki, the plaintiff and his family lived in a good-class residential street, but the house next door was used by the defendant and others for the purposes of prostitution.
The plaintiff complained that this conduct depreciated the value of his own house and interfered with the comfort and convenience of himself and his family. The court held that the mere sight of prostitutes and their clients entering and leaving the premises was offensive enough and that the claimant did not have to prove that the sex from the building was noisy. He was granted an injunction against the nuisance.
That's locality. The second one, second head, is the claimant's abnormal sensitivity. So the law expects a defendant to conform to a reasonable standard of conduct not to some unusually high standard which the claimant seeks to impose. So a claimant with an unusually sensitive nose cannot complain about smells which would not have disturbed a normal person. So in Shepherd and Griffith In this case, the defendant operated a hotel in New Amsterdam.
The plaintiff lived in an adjacent house situated only about two meters from the said hotel. The plaintiff complained of a noise from a jukebox which was played in the hotel at all hours, especially between midnight and 4am every night and he also complained about dancing, clapping and loud talking and pelting of glasses and bottles. He was compelled to move away from his bedroom and sleep on the floor in another part of the house. It was held that the defendant's conduct amounted to an unreasonable interference with the plaintiff's enjoyment of his land and constituted an actionable nuisance. The plaintiff was entitled to damages and an injunction restraining the defendant from playing the jukebox after midnight.
Conversely, in the case of Heath and Mayor Brighton, A vicar complained that he was put off his sermon as a result of a low harm from the defendant's electricity works. It was held that the plaintiff was abnormally sensitive as no one else had complained and the defendant's activity did not stop church services. So this is under the heading of abnormal sensitivity.
Another case under this head is under a subheading which is the utility of the defendant's conduct and this refers to the principle that the court would not generally fine for the defendant merely because He shows that his conduct was beneficial or useful to the community. So in Belloo and Cement Company, the plaintiff brought an action for an injunction to stop the emission of dust and noise from a cement factory. It was accepted that the production of cement for housing construction at the time was of urgent national priority. The defendants were the only producers of cement in the country.
However, the court held that an injunction was fit to be granted and it resulted in the closing down of the factory for three months. The court found that the plaintiff should not be made to bear the burden alone of the activity. from which many others would benefit. So even if it's beneficial and useful, it doesn't necessarily mean that the court would not deem it a nuisance. So the third factor to consider is the duration of the nuisance or the harm.
The question of duration of the harm may be relevant in two ways. 1. The essence of the nuisance is a continuing state of affairs. 2. It is a mere temporary inconvenience, such as noise and dust from demolition of a house, for example.
A permanent inconvenience, such as noise or smoke emanating from a factory, is more likely to be held. as unreasonable. So in Swain and Great Northern Railway, it was held that the dumping of garbage next to a claimant's property before moving it the next day was not sufficient for successful action in nuisance as it was very temporary. The fourth consideration on the amenity damage is malice.
The defendant's malice is a factor to be taken into account in deciding whether his conduct was reasonable. Malice in this context means spite, ill-will or evil. So in Hollywood, Silver Fox Farm Limited and Emmet, it was said that the defendant, the facts demonstrate that the defendant was spitefully firing his guns on his land close to the boundary of the plaintiff's land. And at this time, the plaintiff was breathing.
his silver foxes and the defendant intentionally fired his guns for the purposes of causing the silver foxes to miscarry. It was held by the court that the defendant was liable in nuisance for damage to the foxes since the harmful conduct could not have been reasonable where it was motivated by malice. I also went on to say that had it not been for the malice factor the defendant would not have been liable because of the sensitive nature of the property.
So who may sue? In private nuisance, the traditional view is that only a person who has an interest in the land affected can bring an action in nuisance. They include 1. The owner in fee simple or the owner with absolute title and 2. The lessee under a lease and 3. A licensee with exclusive possession.
A person having no legal or equitable interest in the property such as a guest or a lodger or member of the owner family cannot sue for private nuisance. Who can be sued? The creator of the nuisance Even if he does not have an interest in the land from which the nuisance emanates, 2. The occupier of the land will be liable not only for his own action but for all under his control including independent contractors. 3. The landlord will be liable where he authorizes the action or the nuisance. Remedies for Private Nuisance 4. Damages 5. Injunction Now, defenses in relation to an action for nuisance.
Contributory negligence. So, this can be invoked only where the nuisance complained of is based on negligent conduct. 2. Voluntary non-fit injuria.
So that voluntary injury may be available provided that there is no negligence on the part of the defendant. 3. Act of a stranger. This is a defense available where the defendant was not at fault in failing to notice the nuisance or failing to take steps to abate it. 4. Necessity. To necessity may lie where in order to avoid an imminent peril to himself, the defendant takes some action which unavoidably causes damage to the claimant.
Statutory Authority This is a defense to nuisance and is applicable where the legislator has imposed a duty upon a public authority or has given it power to perform certain functions for public benefit, such as the supply of water or electricity or the disposal of sewage where nuisance is caused in the course of carrying out such duties or powers. The public authority may sometimes escape liability by pleading statutory authority. The resulting harm will not be actionable provided that all reasonable care and skill has been taken.
A defendant may claim a prescriptive right to commit a nuisance if his activity has been an actionable nuisance for an entire 20-year period. 7. Public good. It is no defense. I repeat, it is no defense on action in nuisance that the activity was for the public good or the benefit of the community. Nor is it a defense that the defendant exercised all care and skill in carrying out his activity.
The defendant was there first. It is no defense that the claimant came to the nuisance and met the defendant already there. Alright, so that's the end of private nuisance. Public nuisance is very short. It's essentially you need to just understand what it is.
So public nuisance, a public nuisance is committed where a person carries on some harmful activity which affects the general public or a section of the public. Typical examples would be where a factory owner causes noxious fumes and smoke to pull pollute the atmosphere in a locality or where an obstruction is caused on the public highway. A public nuisance is primarily a crime actionable by the Attorney General. An individual can bring an action only where he can show that the defendant's conduct has caused him particular damage over and above that suffered by the general public. So building a wall to obstruct the public road the public road cannot normally only be cured by an application by the attorney general for damages and an injunction to remove the obstruction.
But if an individual road user suffers damage to his car as a result of the obstacle, he could then bring an action for damage and an injunction. Generally speaking, only the attorney general can bring an action for public nuisance, as mentioned before. Any person who can show that he has suffered particular damage over and above that suffered by the general public can sue for public nuisance.
Particular damage includes injury to land and chattels and personal injuries. A person who suffers only personal injury however cannot sue in private nuisance. The position is different with public nuisance. and in the case of Castle and St. Augustine Links Limited, the facts demonstrate that a taxi driver was driving his taxi along the public highway when he was hit in the eye by a golf ball.
which was a shock from the defenders in the nearby golf course. He lost his eye. He swooped for damages on the ground, but the positioning of the golf course was so close to the highway as to endanger passers-by.
constituted a public nuisance and he had suffered particular damage and He was successful in his action That's the end of the mini crash course in public and private nuisance