Monday, June 15, 2015

An Introduction to the Tort of Nuisance – Part 1

….an interference or disturbance must be shown to be unreasonable in order to pursue an action in nuisance, which by default must means that there are some occasions when interferences or disturbances will be reasonable

I have recently written a number of articles which discuss the Tort of Negligence which tends to get a great deal of publicity with legal specialists offering their services on a no win no fee basis.  You will see television adverts, billboards, newspaper and magazine articles, unsolicited emails and sometimes cold calling from legal companies trying to convince us that we have a legitimate claim in negligence for one reason or another.  A further area of Tort law which is just as significant, but less well known is the Tort of Nuisance.

In the case of Walter v Selfe (1851) the definition of nuisance is defined as: ‘… inconvenience materially interfering with the ordinary comfort, physically, of human existence, not merely according to elegant or dainty modes of living, but according to plain and sober and simple notions among the English people’.  It is always interesting to read a judge’s decision and particularly the language that is used in ‘older cases’.  The vast majority of nuisance cases relate to an ‘unreasonable’ interference with the use and enjoyment of land or property.  What is also interesting is the fact that an interference or disturbance in nuisance must be shown to be unreasonable in order to pursue an action, which by default must means that there are some occasions when interferences or disturbances will be reasonable.  As an example let us consider a person who is working night shifts and therefore has to sleep during the day.  Does noise from a neighbouring property (during the day), constitute an unreasonable interference or disturbance?  It is unreasonable to expect the neighbour to be completely silent and an action in nuisance by the night worker is highly likely to fail.  On the other hand if the noise complained of can be proved to be excessive and persistent then the outcome could be very different.   The definition of what is considered as unreasonable interference is further clarified in the case of Carley v Willow Park Golf Course Ltd. (2002), Interference must be such as would not be tolerated by the ordinary occupier. No use of land is reasonable if it produces substantial discomfort to others, or materially damages their property’.

Examples of what may constitute nuisance are not limited to noise as per the example above, and can include things such as odour, lighting, waste, air quality, bonfires and so on……  Nuisance can be categorized as public nuisance, private nuisance and statutory nuisance and I will endeavour to explain the difference between each over the course or this and the next few articles.

Public Nuisance is defined as an unlawful act or omission which endangers or interferes with the lives, comfort, property or common rights of the public. As it is the general public that are affected, actions in public nuisance will mean that a number of people are affected (sometimes a considerable amount of people), not just an individual. Public nuisance is considered as a criminal action, where proceedings are brought by the Government who will typically seek an injunction to remedy the nuisance, not damages.  Sometimes however damages will accrue as a result of a successful injunction resulting in a defendant suffering financial consequences to rectify the impact of the nuisance. For example, a manufacturer who has polluted a river or stream may be served with an injunction preventing them from further pollution (the nuisance) and be fined for the costs of any clean up or re-mediation works.  Also, in some situations a criminal sentence may also be handed down by the courts.

There are a number of previous cases which provide examples of public nuisance including Benjamin v Storr (1874). For the purposes of his business, Storr kept horses and vans standing outside Benjamin’s coffee house throughout the day which caused an obstruction to the highway (a public nuisance). Benjamin complained that he had suffered special damage due to the vans and horses obstructing light, resulting in increased expense incurred for keeping gas lights burning throughout the day.  He further alleged that the smell of the horses was offensive and deterred customers from using the coffee house.  The court found in favour of the plaintiff (Benjamin) and demonstrates that a defendant can be found guilty of public nuisance (the obstruction of the highway) and also be faced with an action in tort for the loss and disruption resulting from the nuisance. 

Other examples of cases of public nuisance to look at include Tarry v Ashton (1876), Attorney General v PYA Quarries Ltd (1957), Dollman v Hillman (1974) and Tate & Lyle Industries v Greater London Council 1983), however, to conclude this article I would like to finish with a case that always generates some discussion with my students, the outcome of which, at first glance does seem a little unfair;

Wandsworth London Borough Council v Railtrack plc (2001), The defendant (Railtrack) owned a bridge which attracted large numbers of pigeons.  Interestingly, although the owner was not at fault, they were held liable to contribute to the local authority's costs of the bridge to deal with the nuisance.  As stated above, at first glance it does seem unfair that the defendant could be held responsible for what is effectively ‘the forces of nature’.  The justification from the courts for their decision was that the number of pigeons were enough to constitute a public nuisance, and the defendants became liable where they had not remedied the nuisance after a reasonable time. The judge went onto state; ‘the fact that the pigeons were wild, and that the nuisance was one of inconvenience rather than the causing of actual damage were not relevant. The local authority's request was reasonable’.

The above introduces the tort of nuisance and provides some case examples to demonstrate the point.  As with all areas of law, further reading will help to deepen understanding where I have provided some other cases for further reading and research. In my next article I will consider private nuisance.

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