Nuisance and the principle of Rylands v Fletcher

Nuisance is a common law tort with two strands: private nuisance and public nuisance. I will only be considering private nuisance here (also existence of statutory nuisances). The tort of private nuisance essentially protects against 'indirect' interference with a claimant's use and enjoyment of their land. This can take the form of excessive noise, emissions, smells of noxious fumes. Private nuisance is commonly defined as the unreasonable interference with the use or enjoyment of land. William Prosser notes how "there is perhaps no more impenetrable jungle in the entire law than that which surrounds the word 'nuisance'." Any annoyance to a persons property which interrupts their enjoyment of the property is a private nuisance, and this definition was examined in the case of Connolly v South of Ireland Asphalt (1977). With this in mind, proceedings involving private nuisance is the seeking of protection against harm to property. The difference between trespass and nuisance is directness, as in a trespass requires direct impact while a nuisance only requires damage which is consequential. Trespass is therefore the physical intrusion of land, whereas nuisance acts as the consequential interruption of land. Private nuisance is a strict liability tort and there is no requirement for evidence of negligence on the part of the Defendant. There is an exception to this, when there is injury caused due to a failure to act and in these circumstances the onus lays on the Defendant to show that they took all reasonable steps to prevent injury. Plaintiff must also show that there is a causal link. Central issue in nuisance cases is reasonableness and the definition of 'unreasonable interference.' The law focuses more here on the unreasonableness of the interference itself rather than the unreasonableness of the defendant's conduct, per se. In doing so, the courts seek to strike a balance between the rights of occupiers to use their property as they so wish and the rights of neighbours not to have their land interfered with. This is derived from the Latin phrase 'sic utere tuo ut alienum non laedas' translating as 'you must use your own property in such a way as not to harm that of others.' Who can sue? Landowners and occupiers may sue in nuisance. It seems that the Irish courts have adopted a more restrictive approach to who may sue with regards to those with a mere license. Who can be sued? The creator of the nuisance, the owner of the property, the occupier of the property, the landlord.

What constitutes a private nuisance?

Physical injury: Causing physical injury to land (eg, gas lea or damage to health of animals due to emissions - Hanrahan case) and substantial interference with enjoyment of land. The courts consider the magnitude of the damage, nature of locality and the defendant's motive or the social utility of the defendant's actions. In the case of Hanrahan v Merck Sharpe and Dohme [1999], it was held by the Court that the occupation of the premises is sufficient to bring a claim of private nuisance (locus standi) in the Irish jurisdiction which differs from the English jurisdiction which is reflected in the case of Molumby v Kearns [1999]. The case involved gates at an industrial estate which were expanded, causing increased traffic, noise and dusting. The court held here that the occupation of premises is sufficient to initiate proceedings however came to compromise and imposed a restriction including times of operation and number/size of vehicles accessing the premises at certain times.

Barr v Biffa (2012) - case involved unpleasant smells emanating from a waste tip operated by Biffa. The courts held that the smells constituted unlawful interference with the claimant's land, stating that the smells went beyond what was generally acceptable and reasonable in the circumstances.

Noise nuisance - Murdoch v Glacier Metal (1998), claimant alleged noise nuisance and was able to demonstrate that the noise was excessive in accordance to what was reasonably acceptable.

Bringing proceedings: what needs to be met/established?

There are a number of elements to a claim in nuisance, locus standi, conduct for which the defendant is responsible for, damage or interference with rights, unreasonableness and causation. Three elements must be shown in order to successfully initiate proceedings for private nuisance:

1. Must show possessory interest in the land

2. That another performed an act which interfered with the plaintiff's use and enjoyment of the land

3. That the interference by the defendant was substantial and unreasonable. This factor is the most debated and contested in nuisance proceedings. The law of nuisance in Ireland treats substantial and unreasonableness as separate factors for consideration.

Unreasonable interference, but also relates to omissions for which the defendant can be held legally responsible for, such as failure to alleviate natural hazards. Failure to omit was examined in the case of Leakey v National Trust [1980] whereby the defendant's topsoil slipped onto the plaintiff's property which caused damage and was threatening further damage. The court held that the person in control of the property are liable for nuisance for failure to do everything that is reasonable in the circumstances to prevent or minimise the risk of foreseeable damage which they either a) knew or b) ought to know that such encroachment onto the neighbouring land would occur.

Plaintiff must prove damage

Onus is on the plaintiff to prove the form of damage in nuisance proceedings. In exceptional circumstances, damage does not need to be shown. In the case of O'Kane v Campbell [1985], the plaintiff sued the defendant for nuisance as a result of customers lingering outside of the defendants shop in the early hours of the morning. In other nuisances which are strict in nature, the court assess the impact of the defendant's activities to determine unreasonableness. There is a contrast here between the tort of nuisance and the tort of negligence as the tort of negligence focuses on the unreasonableness of the defendant's conduct before and during the occurrence or act. The difference in approach is due to the fact that the law of nuisance primarily operates as a means to protect the right of enjoyment of private property.

Several factors are considered when assessing if the impact is unreasonable::

1. Magnitude of the damage - objective test (unreasonableness will be assessed with some added elements of subjectivity in particular, the age and circumstances of the plaintiff). This involves the intensity, duration and frequency of the nuisance. In the case of Hapin v Tara Mines [1967], the court expressed the view that intermittent noises which are irregular and unpredictable in nature and which are unusual in the locality may be more disagreeable that other regular noises such as traffic. The court stated that unusual noises may instil anxiety and apprehension in the property owner compared to regular noises with are distinctive in nature.

2. Nature of the locality - this may impact the reasonableness of the impact. Balance between interest of plaintiff and defendant in their respective premises.

3. Defendant's motives - an act not otherwise a nuisance may become one if done maliciously in order to annoy the plaintiff. Christie v Davey [1893] - defendant did not like the sound of plaintiff's violin lessons, therefore decided to bang dustbin lids every time the plaintiff gave a lesson. Court held that the defendant's behaviour amounted to a nuisance.

4. Social Utility of the Defendant's actions - may also be relevant in assessing whether impact is unreasonable and thus whether a nuisance has been created.

In the more recent case of UCC v ESB (2015), the property of the plaintiff was damaged as a result of flooding arising from the river Lee following storms and heavy rainfall. The plaintiff brought action in nuisance and negligence against the defendant as regards to their management of the dam. As the water rose the defendant released water into the river which caused the flooding and the court held defendant as failing to abate a nuisance which was created on the property. ESB deliberately released waste and in doing so caused damage which could have been avoided or significantly reduced by heeding weather reports and spilling earlier or indeed by operating consistently to the appropriate water level. The court also held that the plaintiff also did not act reasonably as they did not have raised floors in their premises nor did they have a proper flood response plan.

Rylands v Fletcher

This tort grew out of the older tort of nuisance and is defined from the case bearing the same name. The rule of Rylands v Fletcher is that it imposes an exceptional form of strict liability applying to unusual dangers or activities on land. In this regard, the defendant will be liable in the absence of intent or neglect and where the plaintiff shows the constitutent elements the defendant is held liable for the damages incurred. In the original case of 1866, the plaintiff and defendant were in businesses of mining coal on adjoining property. The defendant hired independent contractors to build a reservoir to supply water to his mill. The contractors were negligent in their care and failed to uncover a mineshaft under the reservoir. The water subsequently broke from the shaft, flooding the plaintiff's mine. The plaintiff, in litigation, faced several difficulties. (1) the Defendant had been cleared of negligence by an arbitrator. (2) The Defendants could not be held vicariously liable for the wrongs of their independent contractors. (3) Technically, a trespass had not been committed, since the flooding was not a direct consequence of the Defendant’s activity and (4) A nuisance had not been committed, since this was a single escape of water. In its imposition of strict liability, the court held in the case that, “the person who for his own purpose brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape." The judiciary in the case analysed the case as a variant of the law of nuisance, however case law since have distinguished the law of rylands v fletcher as distinct (between cases where the defendant use of land was natural and cases were the defendants use of land was nonnatural). Blackburn J in his judgement stated that in order to succeed in a claim of this type, the following must be proved:

1. That the defendant brought something onto his land (didn't grow there naturally for example, tree); dangerous item

2. That the defendant made a “non-natural use” of his land;

3. The thing was something likely to do mischief if it escaped (dangerous item);

4. The thing did escape and cause damage.

In case of West v Bristol Tramways Company (1908), the Defendant allowed fumes to escape which killed the plaintiff's plants and shrubs. Court held that standard of knowledge is common knowledge and onus was on the defendant to show that there was no general knowledge that the item was not dangerous. In this case, although the fumes were not highly dangerous and this was generally known, the fumes qualified by the court as a dangerous item. Further, in the case of Cambridge Water Company v Eastern Counties Leather Plc (1994), which involved the escaping of a chemical substance into the soil of the defendant's premises which subsequently damaged and seeped into the soil of the plaintiff. The plaintiff's bore hole was used to supply the public with water. Court held that the test in the case is the test of reasonable foreseeability of the danger and concluded that the harm in this matter was not foreseeable since chemicals escaped into locations up to a mile away.

Defences - prescription, act of God, consent, common benefit, act of a stranger, statutory authority, default of the claimant (contributory negligence). Remedies - injunction which orders defendant not to continue with the nuisance. In case of Kennaway v Thompson (1981), the plaintiff lives next to a lake which was used by the defendant for powerboat racing. Noise from the boat amounted to a nuisance. An injunction was granted to restrict the amount of events on the lake and the noise from the boats. If damage has been created to the land, then the court can order damages to the plaintiff in order to compensate for their loss. Abatement, the injured party also has the right to abate the nuisance as seen in the case of Lemmon v Webb (1895) where the injured party was deemed to be entitled to take action by cutting the roots as soon as they projected onto his property.

To summarise:

1. Nuisance covers indirect interference with the use of enjoyment of land and differs from the tort of trespass which protects against direct interference.

2. Public nuisance is a crime as well as tort. Private is only a tort.

3. A claimant in private nuisance must have an interest in land to sue. Personal injury is not recoverable in private nuisance (it is in public nuisance).

4. Principle of Rylands v Fletcher governs liability for the escape of dangerous things, no need to show duty of care or breach of duty of care.

Concluding thoughts

The law of tort is predominantly fault-based however there are instances in which liability can be imposed without negligence on the defendant's part. In these circumstances, the courts will impose strict liability for damage caused by means of nuisance and interference that is unreasonable. It is irrelevant in such cases that the person took all reasonable care to avoid. A claim cannot be brought unless the nuisance is substantial and unreasonable. The conduct of the defendant is judged 'according to the ordinary usages of mankind living in a particular society.' Rylands differs from the tort of nuisance in that the tort of nuisance involves interference with land, whereas Rylands involves escapes from land. The House of Lords reviewed the principle of Rylands in the case of Transco v Stockport MBC (2004), for modern application. The HoL rejected claims to abolish Rylands as a strict liability rule.