TORTS TUTORIAL Private Nuisance and its Boundaries

Introduction

A person is guilty of committing private nuisance who does any act, or is guilty of an illegal omission, which is an 'unlawful interference with a person's use or enjoyment of land, or some right over it'. [1] In Hunter v Canary Wharf [2] , it was established that private nuisance is of three types: encroachment on a neighbour's land; direct physical injury to the land; or interference with the enjoyment of land. Liability in nuisance, among other factors, depends on the nature of the defendant's conduct and balance of conflicting interests. Also, more or less, a person would be held liable for nuisance only if the land is damaged and not merely chattels on the land. It is only when the interference becomes unreasonable and substantial that the law interferes.

Nuisance and substantial interference

Unlike trespass which is actionable per se, a precondition of nuisance liability is to show that the claimant has suffered damage which embraces both tangible and intangible interferences. It is not necessary that a claim only arises if there is physical damage to the land. Omission of unpleasant smells, or generation of loud noise are considered as interferences with amenities associated with land ownership, thus a ground for a valid claim. Hence, it is necessary to distinguish between various kinds of interferences.

1) Interference with the use or enjoyment of land

Where amenity nuisance is concerned, the law requires compromise on part of both the parties. There has to be a balance of competing rights of neighbours and a rule of 'give and take , of live and let live' [3] has to be applied. It is only when there is substantial interference that nuisance would be established. However, the question of substantiality is one of fact and varies from case to case and context to context.

A) Sensitivity of the claimant: The standard of tolerance is taken to be that of a 'normal' neighbour and abnormal sensitivity is not accounted for in either persons or property. In Robinson v. Kilvert [4] , regarding sensitive property, it was held that a person who carries on an exceptionally delicate trade cannot complain because the lawful act carried on by the neighbour would not injure anything but that trade. That is, by putting a property to special uses, whether for business or pleasure, you cannot increase the liability of the neighbour. However, from McKinnon Industries Ltd v. Walker [5] , it was established that a person would be compensated accordingly if a person's delicate trade is damaged if even a claimant of ordinary sensitivity would have been able to found a nuisance action regarding the interference complained of.

B) Location of the Claimant's premises: This area has mainly evolved from St. Helen's Smelting Co. v. Tipping. [6] The levels of comfort, peace and quiet, will naturally vary according to the nature and location of the locality from where the claim arises. That is, interference which might be permissible in one area might not be permissible in another. For example, a chemical producing factory which is set up in an industrial area, and not a residential area, would be immune from nuisance claims. The interference must be something over and above the daily inconveniences of that particular area to give rise to a valid claim. It is also to be noted that the character of a locality changes with time and it is taken into account by the courts.

2) Material damage to land: For a valid claim, there has to be substantial physical damage. The character of the locality in which the claimant's land belongs is immaterial in assessing the gravity of the interference. However, this has caused a blur in the distinction between physical damage and interference with amenities when both occur simultaneously. For example, if vibrations cause plaster to break off a claimant's wall, the same can substantially interfere with the comfort and enjoyment of the house. Thus, it is best not to ignore the locality issue except in clear-cut cases.

Reasonableness and its parameters

Besides substantiality of the interference, the defendant's conduct has to be shown to be unreasonable, thereby making it unlawful. The principle which is applied is: sic utere tuo ut alienum non laedas (So use your own property as not to injure your neighbour's). In the tort of nuisance, it is the unreasonableness of the interference rather than that of the defendant's conduct which must be present. However, this doesn't mean that nature of the defendant's conduct is immaterial. The court would award damages to the plaintiff if it is found that the damage caused by the defendant could have been prevented had he adopted reasonable precautionary measures.. Also, as stated in Tetley v. Chitty [7] : "the claimant must be able to demonstrate a real interference with his use and enjoyment of his premises". Therefore, a neighbour won't be held liable for playing loud music in the small hours of morning if the other neighbour is deaf and hears nothing, thereby not causing an interference. This implies that the condition of the plaintiff also determines the degree of reasonableness. The factors influencing reasonableness of an interference are:

1) The seriousness of the interference

The more continuous and persistent an interference, the more likely it is to be deemed unreasonable. However, in exceptional circumstances a transitory or isolated event arising from a dangerous "state of affairs" can also lead to a valid claim. Also, unreasonableness of an interference is more or less proportional to the impact which it has on the defendant. However, the gravity of the harm should not be gauged on a purely objective basis. It is always vital to show, despite however harmful an interference is, what impact it had on the claimant. Talking about character of the harm, it is inherent that physical damage is seen to be more serious than amenity nuisance. Plus, it is easier to prove and quantify in terms of damages. Finally, it is more likely that the interference complained of is taken seriously if it affects the claimant's land which he/she has put to some social use.

2) Reasonable use of the defendant's land

There are certain defences which a defendant can take once it has been established that nuisance arose from the use of the defendant's land. While the defendant's motive is not the most important factor in establishing liability in nuisance, if there is a presence of it, it has a persuasive value on the court's decision. At the same time, there are some activities which are deemed illegal and any substantial disturbance thereby arising from the activity can never be justified and will always be unreasonable. Plus, it will always be material whether the defendant, by taking reasonable, practicable steps to prevent the interference, could still have achieved his purpose without interfering with the claimant's use of his land. [8] 

Nuisance and Negligence

There is a considerable amount of overlap and inter-relationship between the torts of nuisance and negligence. There can be times when negligence and nuisance both arise concurrently in a situation. In such cases, the claimant has to choose whether to file a case under nuisance or negligence. However, over the years, some distinctions have been highlighted between the two torts. While nuisance protects interests in the enjoyment of land, negligence deals with breach of duty of care which a person owes to others. Unlike negligence, a claimant seeks remedy in the form of an injunction rather than damages in nuisance. This is because the main aim in nuisance is that the neighbour, against whom a complaint is made, should abstain from carrying out an activity which causes unlawful interference. Plus, in nuisance, the concepts of magnitude and unreasonableness are context-dependent. Whereas in negligence, the reasonableness is set from a reasonable man's point of view, in nuisance we can't have an objective outlook. It is not concerned with whether the defendant passes the 'reasonable man' test or not. Nuisance mainly deals with the unreasonableness of the outcome, rather than the unreasonableness of the defendant's act. The law of nuisance mainly deals with violations of land or interests in or over the land and is not designed to cover personal injuries, which negligence does.

Nuisance and Strict Liability

We can say that liability in nuisance is both strict and fault based. It is strict in the sense that though a defendant takes all the reasonable care to prevent the damage, he would still be liable. But, at the same time, though one undertakes an enterprise with all possible caution, one can seldom guarantee that certain, foreseeable, adverse consequences will not arise. [9] The rule laid down in Rylands v. Fletcher [10] cannot be applied universally to all nuisance cases. That is, liability will only be attached to defendants who could reasonably foresee the damage caused.

Conclusion

The law of nuisance is wrapped up in a pool of uncertainty. The boundaries of this tort are in no way fixed or easy to identify. Recent cases have constantly been changing the ambit of nuisance and to a considerable extent, the tort of negligence has eclipsed important elements of the law of nuisance.