#2380 - What Is Private Nuisance - Tort Law

Private Nuisance

Who can sue for Private Nuisance?

• You can still claim even if you “come to the nuisance”

  • St Helen’s Smelting Co v Tipping (1865):

    • Damages can be claimed for nuisance prior to acquisition of land (i.e. “coming to the nuisance”) [EVEN IF it is already know of]

  • Miller – cricket balls kept flying into C’s back garden which they’d recently bought, despite a high fence being erected

    • Lord Denning (dis):

      • C should move elsewhere; cricket was a public good, and it was important to conserve the playing fields against development.

    • Maj

      • The rule in Bliss applies here – the fact someone has come to a nuisance is not a defence, no matter how much utility there is in D’s activities

  • HOWEVER bear in mind Hunter

    • Lord Hoffmann:

      • Damage is assessed as if an estate agent valued the difference between the right to occupy a house without the nuisance and the right to occupy one with it

    • Therefore, it is likely that if the new person has come to the nuisance, then if they’ve obtained a discount from the purchase price,

      • they don’t necessarily have any actionable damage if the nuisance has stayed the same.

• You need a proprietary interest in the land in question

  • Khorasandijian v Bush [1993]:

    • Dillon LJ: court should reconsider earlier decisions in light of changing conditions

      • And hold that even those without proprietary interest in the land can bring claims for nuisance

  • Approach rejected in Hunter v Canary Wharf Ltd [1997]:

    • Lord Goff:

      • Court of Appeal in Khorasandjian v Bush tried to extend this principle to where person in question has an “occupancy of substantial nature”

        • Problem = CoA trying to give legs to tort of harassment by backdoor of tort of nuisance

          • No longer necessary - statutory recognition given (tort of harassment instead)

        • Claim based on misunderstanding that licensee was entitled to sue, when no such claim exists in law.

    • Lord Hoffmann

      • Nuisance is not founded on personal discomfort

        • Is it founded upon an injury to the land itself (although this may not manifest itself physically)

          • This injury is then what causes the diminishing of enjoyment of the land

      • Thus, if you don’t have an interest in the land

        • Then you can’t surely claim from an injury to land you don’t have possession over.

    • Lord Cooke (dis):

      • Article 8 seems to give some support to notion that proprietary rights are irrelevant considerations

      • Definition of occupier routinely changes

        • Can be an invitee, tenant, licensee etc.

          • If merely a guest, than should not receive support

          • But what if lives their permanently?

      • Old law said that sons could claim if living legally in father’s house

        • From nuisances which are so noxious and long-continued

          • so as to materially affect his wellbeing

• What does this include?

  • E.g. tenant, landowner, grantee of easement, profit a prendre or right to exclusive possession.

    • But not member of landowner’s family, guest, lodger or employee.

    • Lord Goff in Hunter

      • It is however established that if C has actual occupation, he need not prove title in order to sue under private nuisance.

  • Pemberton v Southwark LBC (2000): C, a secure tenant, defaulted on the lease but was allowed to stay, provided that she paid something towards the rent, with the status of ‘tolerated trespasser’. C’s flat was invaded by cockroaches from the common parts of the building, which was the council’s responsibility.

    • CoA:

      • C’s exclusive right to occupy the premises sufficed to bring it within the scope of nuisance, and Hunter was distinguished in this context.

    • Yandle: the tort was viewed as a social right, to protect vulnerable people such as ‘tolerated trespassers’ like the claimant.

      • Infiltration of the ECHR? Will the ECHR break down Hunter completely?

• Can those with proprietary interests claim on behalf of others?

  • Hunter v Canary Wharf Ltd [1997]:

    • Lord Lloyd

      • If the occupier of land suffers personal injury as a result of inhaling the smoke, may have a cause of action in negligence.

        • But he does not have a cause of action in nuisance for his personal injury,

          • nor for interference with his personal enjoyment.

      • Thus quantum of damages in private nuisance does not depend on the number of those enjoying the land in question

        • It also follows that the only persons entitled to sue for loss in amenity value of the land

          • are the owner or the occupier with the right to exclusive possession

    • Lord Hoffmann

      • There’s an inclination to treat St. Helen's Smelting Co. v. Tipping as having divided nuisance into two torts:

        • 1. Causing ‘material injury to the property’

        • 2. And of causing ‘sensible personal discomfort’ such as excessive noise or smells.

          • However, in cases in the first category, there has never been any doubt that the remedy,

            • is for causing damage to the land.

      • Thus in such a case only a person with an interest in the land can sue

• Can the fact there are other people who have lost amenity living in the property affect the damages?

  • Hunter

    • Lord Lloyd:

      • Each member of a family does not have a separate cause of action. There is no more than one potential cause of action for each home

        • By the same token damages are not to be increased by any multiplication of plaintiffs.

  • Dobson v Thames Water [2009]:

    • Waller LJ:

      • The speeches of Hunter clearly establish that damages in nuisance are for injury to the property and not to the sensibilities of the occupier(s).

        • That leaves open the question how damages are to be assessed where there is no loss of market value or other pecuniary loss,

          • no physical damage to the property and no loss of income from its use/letting,

            • but is simply loss of amenity

      • Lord Hoffmann contemplated estate agents valuing the difference between the right to occupy a house without the nuisance and the right to occupy one with it

        • Thus to assess this, if the property was a family home, you would have to take into account the effect on the family.

        • It follows that the actual impact on the occupiers of the land,

          • although not formally the measure of common law damages for loss of amenity,

            • will in practice be relevant to the assessment of such damages in many cases – e.g. family home.

      • But this is recovery only for that claimant –that doesn’t necessarily mean the claim is exhausted on over grounds [see below]

• Effect of the Human Rights Act?

  • Art 8(1): Everyone has the right to respect for his family life, his home and his correspondence

    • ECourtHR in Khatun v United Kingdom [1998]:

      • Home = factual circumstances, not domestic legal proprietary distinctions

      • Thus there is no distinction under Art 8 between those who have a proprietary interest and those who do not

    • Wright: time for English Law to move on from straightjacket of the forms of action

      • So that boundaries of private nuisance determined by link with one’s home

  • McKenna v British Aluminimum Ltd

    • Neuberger J:

      • There is obviously a powerful case for saying that effect has not been properly given to Article 8.1 if a person with no interest in the home,

        • but who has lived in the house for some time and had his enjoyment of the home interfered with,

          • is at the mercy of the person who owns the home, as the only person who can bring proceedings.

    • Nolan: Those who have lived in a house for some time have Article 8 rights (resurrection of the ‘substantial link’ test, considered by Lord Cooke in Hunter).

      • BUT Neuberger J flags the qualification of the public interest again.

  • Dobson v Thames Water [2009]: T, a child, lived with his parents P. P were awarded damages for loss of amenity by TW, a public authority, who caused odours and mosquitoes to affect them. T was awarded no damages for private nuisance b/c no proprietary right. He tried to claim damages under Art 8 instead.

    • Waller LJ:

      • Not one of the speeches of Hunter provide any support for the view that the person who has the right to sue in nuisance

        • is recovering damages on behalf of other occupiers of the property

      • However, in making an award under HRA s.8(2), the court must think the award is necessary for “just satisfaction”

        • But it may be open for T to show that despite the award to the landowners,

          • he as occupier to the nuisance has not had just satisfaction for the infringement of Art 8.

      • The vital question will be whether it is necessary to award damages to another member of the household w/ regard to all circumstances

        • or whether a declaration that Art 8 rights have been infringed

          • alongside the award to the landowner, especially when no pecuniary loss has been suffered, suffices.

      • It cannot be regarded as irrelevant whether T’s parents recover damages in nuisance or what sums they recover

        • As if the effects of the nuisance on T personally were taken into account in determining the loss amenity value of the property

          • and therefore in determining the amount of damages awarded to his parents in nuisance,

            • this would be highly significant when determining whether T needs an award of damages.
              

Nuisance causing physical injury to/encroachment on the land and/or property damage to chattels

• This is distinct from losing some enjoyment of the land and is therefore easier to prove

  • St Helen’s Smelting Co v Tipping [1865]:

    • Lord Westbury

      • But when an occupation is carried on by one person in the neighbourhood of another,

        • and the result of that trade is a material injury to property, then there unquestionably arises a very different consideration.

      • There, the submission which is required from persons living in society to that amount of...