Tort law

1) ‘Recent decisions concerning vicarious liability were no doubt motivated by a desire to do justice, but have left the law in an unclear and unprincipled state.?
Discuss. This is essay question

2) Marlon obtained planning permission to build a petrol station and garage on a plot of land that he owned. He also displayed an exhibition of cars from the 1950s on

the forecourt of the garage. Sarah bought the garden centre next door.

Every Monday Craig, one of Sarah?s employees, used to burn the rubbish from the garden centre. The smoke and soot from the bonfires frequently blew into Mary?s nearby

garden ruining the clean washing which Mary had left out to dry.

Sarah often sprayed her plants with an insecticide, and the wind sometimes carried this insecticide over to Marlon?s garage. The insecticide is harmless to the

paintwork of modern cars, but has a gradually corrosive effect on the paintwork used on cars in the 1950s. This was not widely known and was unknown to Sarah.

Angered by the effect on his cars, Marlon allowed his car wash to operate all night, disturbing Sarah’s sleep and upsetting her pet dogs.

Oil from a tank in Marlon?s garage seeped into the soil. Marlon had not known when he bought the land that there was a channel running under his garage, which carried

the oil into Sarah’s garden centre and killed a number of valuable plants.

Advise Marlon, Sarah and Mary of any claims which they might have in nuisance or under the rule in Rylands v Fletcher.

Help information

NUISANCE
Prosser on Torts 4th ed p571 :

??.there is perhaps no more impenetrable jungle in the entire law than that which surrounds the word nuisance?.?

?Cases are infinite ? difficult to discern general principles at work.
?Conceptual difficulty arises in role of negligence within nuisance.
NUISANCE
?Private
?Public
?Statutory
?PRIVATE NUISANCE defined by Winfield and Jolowicz on Tort as ?an unlawful interference with a person?s use or enjoyment of land, or some right over or in connection

with it.?

?no man is allowed to use his property in such a way as to injure another?
?BUT one person is allowed to use his land in such a way as to injure another
?NUISANCE does not allow the unreasonable use of land by one person which causes damage to another.
?i.e. tort seeks to balance two competing policies ? landowner using land as he sees fit & neighbour trying to have quiet enjoyment of his land
UNREASONABLE INTERFERENCE
Pertinent factors to consider

?(i) Duration & frequency of def?s activities

LEEMAN v MONTAGUE (1936) 2 ALLER 1677

FACTS
?pltff bought house in area partly rural, largely residential
?Orchard 100 yds from house, def kept 750 cockerels crowing from 2 am until 7/8 am
?Impossible for pltff to sleep.
جاري التحميل?

HELD

?Nuisance had been proved
?Pltff entitled to injunction to restrain def from carrying on business of poultry breeder in this manner.
(ii) Character of the neighbourhood or locality : STURGESS v BRIDGMAN (1879) 11 Ch D 852
FACTS
?Pltff doc who bought premises in Wimpole Street
?Def had confectionery business in Wigmore Street
?Def?s kitchen abutted part of pltff?s garden
?Kitchen v abutting wall def had 2 mortars for pounding loaf sugar
?Used for < 20 yrs
?8 yrs after moving in, pltff built consulting room v this wall
?Alleged noise from mortars became a nuisance & sought unjunction

HELD
?Injunction would be granted
?Def not protected by prescription as until room built, no actionable nuisance.

Per LJ Thesiger:
??Whether anything is a nuisance or not is a question to be determined not merely by an abstract consideration of the thing itself, but with reference to its

circumstances; what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey or where a locality is devoted to a particular trade or

manufacturer carried on by the traders in a particular or established manner ?.?

HALSEY v ESSO PETROLEUM (1961) 1 WLR 683
FACTS
?Pltff?s house in Fulham in rd zoned for residential purposes
?Def had oil depot on opposite side of rd zoned for industrial purposes
?Acid smoke emitted from defs? chimneys damaged paintwork of pltff?s car & clothing hung out in garden
?+ strong nauseating smell, noise causing windows & doors to vibrate & tankers arriving & leaving from 10 pm until 6 am

HELD Defs liable

?Under RYLANDS v FLETCHER for damage to clothing & car
?Private nuisance in respect of damage to pltff?s clothing
?Public nuisance in respect of damage to his car

?Private nuisance in respect of the smell (not necessary to show injury to pltff?s health)
?Private nuisance in respect of the noise from boilers and tankers in depot
?Private & public nuisance in respect of noise caused by tankers on highway

GILLINGHAM BOROUGH COUNCIL v MEDWAY (CHATHAM) DOCK CO. (1992) 3 WLR 449
FACTS
?Council granted planning permission for use of former naval dockyard as commercial port
?Defs took lease & began to operate port with success
?Heavy traffic including lorries built up & only access to port involved using residential rd.

?Residents complained
?Pltffs brought action for declaration that use of rds at night constituted public nuisance & for injunction

HELD
?Dismissing action
?Use of rds was disturbance to residents
?Was lawful use of rds & save in extreme circumstances, public nuisance could not arise out of lawful use of highway

?Planning authority had power to alter character of neighbourhood
?Once permission granted, character of neighbourhood determined on this basis i.e. as commercial dock here.
?Disturbance not actionable

(iii) The form of damage-
ST. HELEN SMELTING CO. V TIPPING (1865) 11 HL 642
FACTS
?pltff bought estate consisting of 1,300 acres near to defs? copper smelting works.
?vapour from work proved injurious to pltff?s trees & crops
?claimed damages

HELD
?Pltff would succeed
?Jury was correctly directed that an actionable injury was one producing sensible discomfort
?Every man was bound to use his property in such a way as not injure that of his neighbour.
?Jury asked to consider whether injury was such as visibly diminished value of property & comfort & enjoyment of it.
(IV) INTENTION OR MALICE BEHIND THE ACT-
CHRISTIE V DAVEY (1893) 1 CH D 852
FACTS
?Pltff was music teacher + family members also played instruments
?Def lived next door & requested amount of music be curbed
?Received no reply

?Started to retaliate by shrieking, banging & howling
?Disrupted music lessons
?Sued for injunction; claimed retaliation amounted to nuisance

HELD

?Playing of music not nuisance
?Def?s behaviour did amount to nuisance & restrained by injunction
?Behaviour was done solely for purpose of annoyance & not legitimate use of def?s house.

HOLLYWOOD SILVER FOX FARM v EMETT (1936) 2 KB 46
FACTS
?Pltff purchased land next to def?s in order to breed silver foxes
?Erected sign with co name ? visible from def?s field & from rd

?Def was developing his land as building estate & objected to sign
?Pltff refused to remove it
?Def knew foxes unusually sensitive to noise during breeding season

?Threatened to fire shot gun nr pens & prevent breeding
?Def?s son carried out threat & partly successful
?Pltff sued in nuisance for damage farm had suffered.

HELD
?Firing was a nuisance for which def was liable in damages
?injunction granted restraining firing or other noises during breeding season.

(V) ENTENT TO WHICH DEF HAS USED PROPERTY FOR COMMON/NATURAL PURPOSE
HUNTER V CANARY WHARF (1997) 2 ALL ER 426
FACTS
?Interference with TV reception & damage caused by excessive dust from rd construction when Canary Wharf built

?Was this actionable in private nuisance?
?First instance judge held interference with TV reception was actionable nuisance BUT rt of exclusive possession of land was necessary to entitle person to sue

CA reversed judge?s decision
?Held creation or presence of building in live of sight between TV transmitter & other properties was not actionable as interference with use & enjoyment of

land

HL
?(1) interference with TV reception caused by mere presence of a building was not capable of constituting actionable private nuisance; person free to build on his own

land ; in absence of easement, more required for mere presence of building to give rise to such an action

?(2) person who had no rt to land affected by nuisance could not bring an action in private nuisance;
?Freeholder, tenant in possession or a licensee with exclusive possession could sue
?HOWEVER mere licensee or occupier had no rt to sue
?Defs? appeals would be allowed
جاري التحميل?
BAXTER v CAMDEN LB (1999) 2 LL ER 237
FACTS
?Claimant lived in Victorian house converted into 3 flats by landlord
?Claimed she could hear normal domestic activities of adjoining occupiers
?Brought proceedings v BC for breach of covenant of quiet enjoyment & nuisance

HELD

?Appeal dismissed

?Ordinary use of residential premises incapable of constituting nuisance?.

?Unless use unreasonable or unusual in terms of purpose for which premises constructed
(VI) ISSUE OF SENSITIVITY OF PLTFF OR PROPERTY
ROBINSON V KILVERT (1889) CH 41

?Landlord let floor to tenant for paper warehouse & retained cellar below
?Commenced manufacture in cellar which required air to be hot & dry
?Temp raised to 80?

?Tenant stored brown paper which deteriorated because of heat.
?Sued landlord to restrain him from heating cellar
?Argued heat dried paper & made it less valuable
?Landlord did not know paper like this would be stored

HELD

?Landlord not liable either in nuisance or implied agreement for quiet enjoyment
?If process carried out by person is not in itself noxious, it cannot be complained of as a nuisance unless it interferes with ordinary enjoyment of life or use of

property.
?Lindley LJ ??.Now if a tenant wants extraordinary protection for a particular branch of trade he must bargain for it in his lease.?
BRIDLINGTON RELAY LTD. V YORKSHIRE ELECTRICITY BOARD (1965) CH 436
FACTS
?Pltffs operated TV relay service to provide customers superior TV signal
?164 ft high mast
?Feared defs? power line would interfere with signal
?Co sued YEB to prevent them from electrifying cable so as to interfere with reception
?Board offered pltff assurance that every effort would be made to suppress interference

HELD
?No injunction should be granted
?Judge satisfied with defs? assurances that every effort would be made to suppress interference
?Use of aerial for business unusually vulnerable to interference

?Could not succeed in nuisance as not entitled to greater protection than that given to ordinary house-holder.
?Obiter : interference with purely recreational facility, even if severe & recurrent would not be actionable nuisance

(vii) Interference must not be trivial
(viii) Interference does not have to be physical
THOMPSON v COSTAKI (1956) 1 WLR 335
FACTS
?Pltffs each occupied house in street in Mayfair
?Claimed interim injunction v 2 prostitutes to restrain them from using adjoining premises for purpose of prostitution on ground that it constituted nuisance.

HELD
?On facts, pltffs had made out sufficient prima facie case
?Activities of defs interfered with comfort of pltffs so as to constitute nuisance to justify granting of injunction in usual form pending trial

PRIVATE NUISANCE can operate as a tort of strict liability BUT see : SOLLOWAY V HAMPSHIRE C.C. (1981) 258 EG 858
FACTS
?pltff bought house in 1967 8 mts from 60 ft chestnut tree.
?Summer 76 subsidence occurred
?Necessitated underpinning costing ?5000

HELD
?Council?s appeal allowed
?Risk was too vague & too remote
?Cost of remedial action was out of proportion to the risk.
SEDLEIGH-DENFIELD v O?CALLAGHAN (1940) AC 880
FACTS
?Trespasser laid drainage pipe upon defs? land;
?Work defective as protective grating was not properly installed
?Drain became blocked & pltff?s land became flooded
?Def?s servant knew of pipe but did not report it
HELD
?Occupiers must be presumed to have had knowledge
?They had done nothing to prevent flooding
?They were liable for ?continuing? or ?adopting? nuisance.
GOLDMAN v HARGRAVE (1967) AC 645
FACTS
?Tall redgum tree in centre of def?s land struck by lightening & caught fire
?Def called tree-feller & had tree felled but did not extinguish it; let to burn out
?Wind came up & revived fire which spread to pltff?s neighbouring land & caused damage

HELD
?Def was negligent in not putting out fire with water & Act (Fires Prevention (Metropolis) Act 1774) provided no defence.

LEAKY v NATIONAL TRUST (1980) QB 485
FACTS
?Pltffs occupied houses adjoining defs? land situated on hill composed of soil liable to crack & slip as result of weathering
?Debris had fallen on to pltff?s property
?After extreme weather conditions in ?76 1 pltff requested defs to attend to danger of major landslip due to cracking of hill surface
?Defs denied liability
?Major landslip occurred, debris falling on pltffs? land
?Sued in nuisance claiming cost of removing debris & carrying out protective works

HELD
?Upheld finding at 1st instance in favour of pltffs

?Landslip had been cause by natural processes BUT

?Defs had been in breach of duty to take reasonable steps to avert danger of which they had been made aware

?Accordingly liable in nuisance
CAMBRIDGE WATER CO. V EASTERN COUNTIES LEATHER Plc. (1994) 2 WLR 53
FACTS

?Defs used & stored chlorinated solvent at its tannery
?1 mile from pltff?s borehole where water abstracted for domestic use
?Water unfit for human consumption having become contaminated by solvent which had seeped into ground below def?s premises
?Claimed on : negligence, nuisance, Rylands v Fletcher

HELD

?Claim failed

?(1) foreseeability of harm of relevant type by def was prerequisite of recovery of damages in nuisance & Rylands v Fletcher

?(2) despite storage of solvent being non-natural use of def?s land, since pltff could not establish that pollution was foreseeable, action failed.
DEFENCES
STATUTORY AUTHORITY
WHEELER v JJ SAUNDERS LTD (1995) 2 ALL ER 697

FACTS

?Pltff bought farmhouse on land adjacent to def?s pig farm

?2 means of access to pltff?s land- south through def?s land but no express rt of way

?Def blocked it and applied for permission to build 2 pig housing units on land

?Proceedings v def for damages for obstructing rt of way; nuisance; injunctions requiring wall to be demolished

HELD

?On facts south entrance not necessary for reasonable enjoyment of property; pltff acquired no rt of way

?Planning authority had no jurisdiction to authorise nuisance

?P permission did not prevent pltff from succeeding in claim in nuisance.

PUBLIC NUISANCE
ATTORNEY GENERAL v PYA QUARRIES [1957]2QB 169

PN = nuisance which affects ?a class of Her Majesty?s subjects?

Need to show sufficiently large collection of private nuisances
PARTICULAR DAMAGE
?WINTERBOTTOM V LORD DERBY [1867] LR 2 Ex 316
?Delay and inconvenience cannot amount to special damage unless it is accompanied by some pecuniary loss

CAMPBELL V PADDINGTON BC[1911] 1 KB869
?the Council erected a stand to view the coronation procession of Edward VII?..
?which blocked the plaintiff’s windows.
?It was held that the erection was a public nuisance but the plaintiff had suffered more than the members of the public.
FAULT BASED/STRICT LIABILITY
?Cases suggest that fault necessary element of nuisance

?DYMON V PEARCE 1972
?Cyclist crashed into parked lorry
?Argued that lorry was a nuisance
?If not parked then no accident
?HELD ? appeal failed.
?Accident due wholly to negligence of motorcyclist
?In criminal law at least nuisance must be actual as opposed to potential

PROJECTIONS & PREMISES
?TARRY V ASHTON (1876)
?the owner of a house erected a lamp that overhung the highway.
?The lamp fell on a passer by.
?It was held that the passer by could sue for public nuisance because the lamp was a danger to the public at large but the passer by had suffered special damage.
STATUTORY NUISANCE
?CL has been supplemented & replaced by some statutory powers that control environment e.g.
?Public Health Act 1936/61
?Control of Pollution Act 1990
?Environmental Protection Act 1990
?Clean Air Act 1993
RYLANDS V FLETCHER
?The defendant was a mill owner ;
?employed a competent contractor to construct a reservoir on his land.
?The contractors came across some old mine shafts
? the contractors did not block them off.
?When reservoir filled with water, it burst through the old shafts & flooded neighbouring mine of plaintiff.

?The mill owner had not been negligent.
?There was no trespass as the escape had not been intentional.
?The cause of action was closest to nuisance
PRINCIPLE
A person who for his or her own purposes brings on to the land and collects and keeps anything likely to do a mischief if it escapes must keep it at his or her peril.

If he or she does not do so then he or she will be prima facie answerable for all the damage which is the natural consequence of its escape.

?It has been suggested that the rule is restricted to a non-natural user of the land.

?The principle is said to create a strict liability,
?i.e. defendant is liable merely because the substance escapes
?who is to blame for the escape is not a consideration
?the defendant may raise a number of other defences

?"A person maybe excused by showing that the escape was the plaintiff’s fault or was an act of God. However the general rule that a person will be liable for the

escape seems just. The person whose grass or corn was eaten by the escaped cattle from his neighbour or whose mine is flooded by water from his neighbours reservoir or

whose cellar is flooded by the filth from his neighbour’s privy or whose habitation is made unhealthy by the fumes or noxious

?vapours of his neighbours factory without an fault of the neighbour should have some redress because the neighbour has brought something on to his own property which

was not naturally there which although harmless to others while confined is mischievous if it escapes."

NON-NATURAL USE
?RICKARDS V LOTHIAN [1913]
?Pltff ran business from 2nd floor of building.
?Def owned building & leased parts to other bus tenants
?Unknown person blocked all sinks on 4th floor& turned on taps to cause flood
?Damaged pltff?s stock
?Action brought in RYLANDS V FLETCHER

HELD
?DEFS not liable
?Act causing damage wrongful one by 3rd party & there was no non-natural use of land
MASON V LEVY AUTO PARTS [1967]
?Defs had store of machinery in inflammable packings + petroleum, acetylene & paints
?Neighbour claimed from fire damage

?HELD
?Def were liable for damage when fire broke out & escaped
?Storage of materials amounted to non-natural user
?Defs liable under rule in R v F irrespective of negligence & Fire Prevention Act 1774

TRANSCO V STOCKPORT METROPOLITAN BC [2003]
?HL upheld CA decision
?Council not liable on facts for escape of water from its land under R v F
?HL reviewed role of R v F & decided that it should remain good law
?Claimant must have an interest in the affected land to bring a claim
Who can be sued?
?RIGBY V CHIEF CONSTABLE OF NORTHAMPTONSGIRE (1985)
?Police fire CS gas canister into C?s shop
?Hoped to flush out dangerous criminal
?Shop caught fire
?C sue for trespass
?HELD there was trespass though case of necessity
?Person who brings dangerous thing onto highway can be liable under rule if it escapes
The escape
?From somewhere within def?s control
?To a place outside def?s control
?READ V LYONS LTD [1946]
?Pltff worked in munitions factory
?Explosion & she was injured
?No evidence of negligence by empl?ers
?No escape & thus no liability under R v F

PERSONAL IN JURY CASES
?Transco appeared to suggest that unlikely that PI claims would succeed but?..
?Hale v Jennings Brothers [1938]
?Pltff injured when chair-o-plane escaped from def?s fairground onto his property
?Trial judge awarded damages for PI

?Strict liability does not mean liability for unforseeable kinds of harm:

?CAMBRIDGE WATER V EASTERN COUNTIES LEATHER [1994]

?Case marked severe restriction on application of rule
?Court restrained devmt of CL strict liability for environmental harm
DEFENCES
?Act of a stranger
?Rickard v Lothian [1913] stranger = person whose acts occupier of land does not control

?Act of God
?Event which ?no human foresight can provide against, & of which human prudence is not bound to recognise possibility
?NICHOLS V MARSLAND (1876)
?Heavy rain caused artificial lakes, bridges and waterways to be flooded & damage adjoining land.
?Def not liable
?But note?..

GREENFOCK CORP V CALEDONIAN RAILWAY [1917]
?Paddling pool for children
?Rain caused pool to overflow & damage property of pltffs
?Extraordinary rainfall did not absolve corp from responsibility & they were liable in damages
?Such rain not unprecedented in Scotland

Private Nuisance :

? What sort of interest will the tort of nuisance protect?

Bradford Corporation v Pickles [1895] A.C. 587

Malice does not make a lawful activity unlawful. The defendant?s right to abstract groundwater was exercised lawfully, even though he had acted with an ulterior

motive. The claimants had no right to receive water on their land and therefore had no claim.

Compare Hollywood Silver Fox Farm v Emmett [1936] 2 K.B. 468 (below).

? A claimant in a private nuisance action needs exclusive possession

Malone v Laskey [1907] 2 K.B. 141
Hunter v Canary Wharf [1996] 2 W.L.R. 348

The CA departed from this rule in Khorasandjian v Bush [1993] 3 All ER 669
The case was overruled by Hunter v Canary Wharf, but the defendant’s conduct would now come under the Protection from Harassment Act 1997, s.3.

Pemberton v Southwark London Borough Council [2000] 3 All ER 924
A ?tolerated trespasser? with exclusive possession was allowed to bring a claim.

Factors taken into account in deciding nuisance:

? Excessive conduct

Rapier v London Tramways [1893] 2 Ch 588
Large numbers of horses.

Bone v Seal [1975] 1 All ER 787
Large numbers of pigs.

? The nature of the locality

St Helen’s Smelting Ltd v Tipping (1865) 11 HL Cas 642
Where the claimant suffers physical damage to property, locality is irrelevant. With intangible nuisance, locality is taken into account.

Sturges v Bridgman (1879) 11 Ch D 852
"What would be a nuisance in Belgrave Square would not be necessarily so in Bermondsey." (per Thesiger L.J.)

Halsey v Esso Petroleum [1961] 2 All ER 145
Excellent case covering a range of torts.

Thompson-Schwab v Costaki [1956] 1 All ER 652
Laws v Florinplace [1981] 1 All ER 659
Further examples of the locality test.

? The claimant’s sensitivity

Robinson v Kilvert (1889) 41 Ch D 88
Bridlington Relay v Yorkshire Electricity Board [1965] 1 All ER 264
The claimant cannot complain if the reason for the nuisance is the claimant’s own sensitivity.

? Duration

Lord Bernstein v Skyviews [1977] 3 W.L.R. 136
Isolated interference did not amount to nuisance.

Andrea v Selfridge [1938] Ch 1
Claimant entitled to damages for those activities of the defendant which had ‘crossed the permissible line.’

Single acts of annoyance:

Midwood v Mayor of Manchester [1905] 2 K.B. 597
Claim successful where damage resulted from a ‘state of affairs’ on the defendant’s property.

? The defendant’s motives

Bradford Corporation v Pickles [1895] A.C. 587
Normally, a malicious motive does not make a lawful activity unlawful.

Hollywood Silver Fox Farm v Emmett [1936] 2 K.B. 468
However, in nuisance a malicious motive can make a reasonable activity unreasonable and therefore actionable.

Christie v Davey [1893] 1 Ch 316
Noise nuisance caused by neighbours.

Natural nuisances

Goldman v Hargrave [1966] 3 W.L.R. 513

Leakey v National Trust [1980] 1 All ER 17
Once the defendant has knowledge of a natural nuisance there is a duty to abate it. However, the courts employ a subjective test of the occupier’s resources.

Holbeck Hall Hotel Ltd v Scarborough Borough Council [2000] 2 All ER 705
A local authority was not liable for erosion of land by the sea.

Wandsworth London Borough Council v Railtrack plc [2001] 1 W.L.R. 368
Defendant liable for pigeons.

Adopting/authorising a nuisance

Sedleigh Denfield v O’Callaghan [1940] A.C. 880
Nuisance created by a trespasser.

Smith v Scott [1972] 3 All ER 645
No liability on a local authority for letting property to an unruly family.

Hussain v Lancaster City Council [1999] 2 W.L.R. 1142
No liability for act of nuisance committed by tenants who were not using the land as a base for their activities.

Tetley v Chitty [1986] 1 All ER 663
Liability where a noise nuisance was an ordinary and necessary consequence of consent, by a local authority, to the use of land by a go-kart club.

Lippiat v South Gloucester Council [1999] 3 W.L.R. 137
The owner-occupier of land could be liable for the unlawful activities of licensees which arose from the use of that land.

DEFENCES

Prescription

Sturges v Bridgman (1879) 11 Ch D 852
Prescription arises after twenty years of committing a nuisance.

Statutory authority

Allen v Gulf Oil [1981] 1 All ER 353

Ineffective defences:

? That the claimant ?came to the nuisance?

Sturges v Bridgman (1879) 11 Ch D 852
Coming to the nuisance was not a defence.

Miller v Jackson [1977] Q.B. 966
A majority decided that coming to the nuisance was not a defence but refused a permanent injunction to the claimant because of public benefit.

? Public benefit (utility of the defendant’s conduct)

Adams v Ursell [1913] 1 Ch. 269
Social utility is not, by itself, a defence.

Miller v Jackson [1977] Q.B. 966
Lord Denning (incorrectly) took public benefit into account in deciding whether there was a nuisance. The correct stage at which to consider public benefit is at the

remedy stage.

Kennaway v Thompson [1980] 3 All ER 329
Court granted a limited injunction in an attempt to reduce noise to acceptable levels.

? That the nuisance is ?due to many?

Lambton v Mellish [1894] 3 Ch 163
It is no excuse that the defendant is simply one of many who are causing a nuisance.

DAMAGES OR INJUNCTION?

Shelfer v City of London Electric Co. Ltd [1895] 1 Ch 287

Smith L.J. laid down guidelines on when damages would be awarded instead of an injunction.

Miller v Jackson [1977] Q.B. 966
Kennaway v Thompson [1980] 3 All ER 329

Consider both of these cases from the point of view of the remedy.

* * * * * * * * * * * * * * * * * * * * * * * *

Nuisance / Rylands v Fletcher Liability

Public Nuisance (Overview)

Attorney General v PYA Quarries [1957] 2 Q.B. 169
Defines public nuisance as one which affects ‘a class of Her Majesty’s subjects.’ The best way to prove a public nuisance is to show a sufficiently large collection

of private nuisances.

? Particular Damage

Winterbottom v Lord Derby [1867] LR 2 Ex.316
No special damage.

Campbell v Paddington Corporation [1911] 1 K.B. 869
Claimant suffered special damage (loss of a contractual benefit) when the defendants obstructed the view from her window.

? Fault Based or Strict Liability?

Scott v Green [1969] 1 W.L.R. 301
British Road Services v Slater [1964] 1 W.L.R. 498
Dollman v Hillman [1941] 1 All ER 355
These cases suggest that fault is a necessary element of nuisance.

Dymond v Pearce [1972] 1 All ER 1142

Case concerns the overlap of nuisance and negligence. In order to bring a claim for personal injury arising out of private nuisance, Edmund Davies L.J. suggested that

a danger caused by the defendant was required. The other judges did not go so far.

? Projections and Premises

Tarry v Ashton (1876) 1 Q.B. 314
Wringe v Cohen [1940] 1 K.B. 229
Mint v Good [1951] 1 K.B. 517
Three cases that hold that liability for projections/premises abutting the highway is strict liability.

Noble v Harrison [1926] 2 K.B. 332
Brown v Harrison (1947) 63 TLR 484
Two cases that hold that liability for natural structures is fault based.

Statutory Nuisance

The common law of public nuisance has been supplemented and, to an extent, replaced by a series of statutory powers that control and punish acts that cause

environmental damage. Enforcement is usually in the hands of a public body e.g. Local Authority.

Examples:

Public Health Act 1936/1961
Control of Pollution Act 1974
Environmental Protection Act 1990
Clean Air Act 1993

THE RULE IN RYLANDS v. FLETCHER

Transco v Stockport MBC [2004] 1 All ER 589

A major case that clarifies the limited role of Rylands v Fletcher liability in modern law.

? The Rule

Rylands v Fletcher (1868) LR 3 HL 330

"We think that the true rule of law is, that the person who for his own purposes brings on his land 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." (Blackburn J.)

? The use of land must be non-natural to come within the rule

Rickards v Lothian [1913] A.C. 263
Non-natural means ?non-ordinary? use of property.

Collingwood v Home and Colonial Stores [1936] 3 All ER 200
Distinguished between domestic services (e.g. water/electricity) and things stored in bulk.
This case must now be understood in the light of Transco v Stockport MBC [2004] 1 All ER 589 (large domestic water pipe regarded as ?natural? or ordinary)

Musgrove v Pendelis [1919] 2 K.B. 43)
Mason v Levy Auto Parts [1967] 2 Q.B. 530
What the courts have regarded as ?non-natural? has changed over time.

? Who can sue?

Charing Cross Electricity v Hydraulic Power Co [1914] 3 K.B. 772
An old case in which the claimant succeeded although a mere licensee.

Transco v Stockport MBC [2004] 1 All ER 589
Under the modern law, the position is the same as for private nuisance: the claimant must have an interest in the affected land in order to bring a claim.

? Who can be sued?

St. Anne’s Well Brewery v Roberts (1928) 140 LT 1
Rainham Chemical Works v Belvedere Fish Guano [1921] 2 A.C. 465
Both cases require a defendant to be an occupier of land.

Rigby v Chief Constable of Northamptonshire [1985] 2 All ER 985
A person who brings a dangerous thing onto the highway from where it escapes to another’s land can be liable under the rule.

? The Escape

Read v Lyons [1947] A.C. 156
The escape must be from somewhere within the defendant’s control to a place outside the defendant’s control.

? Personal injury cases

Under the modern law, as outlined in Transco v Stockport MBC [2004] 1 All ER 589,
it is unlikely that claims for personal injury would succeed. However, the rule has, in the past, been used for personal injury claims:

Shiffman v St. John [1936] 1 All ER 57
Hale v Jennings Brothers [1938] 1 All ER 579

? strict liability does not mean liability for unforeseeable kinds of harm:

Cambridge Water v Eastern Counties Leather [1994] 2 W.L.R. 53

Foreseeable harm or injury of the type complained of by the claimant is a prerequisite of recovery under the rule in Rylands v Fletcher. This case marked a severe

restriction on the application of the rule — the court restrained the development of common law strict liability for environmental harm.

THE DEFENCES

? Act of a stranger

Rickards v Lothian [1913] A.C. 263
A ?stranger? is a person over whose acts the occupier of the land has no control.

? Act of God

Nichols v Marsland (1875) Lr 10 Ex 255
The Act of God must be highly exceptional and entail circumstances that no human foresight can provide against and of which human prudence is not bound to recognise

the possibility.

Greenock Corporation v Caledonian Railway [1917] A.C. 556
Rainfall, although extra-ordinary, was not unprecedented in Scotland.

? Consent of the Claimant

Peters v Prince of Wales Theatre [1942] 2 All ER 533
Thomas v Lewis [1937] 1 All ER 137

? Default of the Claimant

Ponting v Noakes [1894] 2 Q.B. 281
The injury was caused by the horse’s own intrusion and there was no escape.
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