What is Nuisance?
Nuisance may take one of two forms, a public or private nuisance. Public nuisance protects public health, decency, convenience and safety. This in reality is a crime and is taken care of in sections 285-298 of the Criminal Code, 1960 (Act 29). It covers matters such as: (a) selling unwholesome food; (b) hindering burials; (c) carrying on a noxious trade; (d) drunken, riotous or disorderly conduct; (e) throwing rubbish in the streets; and (f) displaying one’s naked body in public.
What is Public Nuisance?
What is public nuisance was explained in A-G v. P.Y.A. Quarries Ltd. hi this case, the quarry owners so conducted their operations that neighbouring householders were discomfited by vibrations from explosions and by the dust which emanated from the quarry in dry weather. There was evidence that nuisance from the vibration and dust could be avoided by the exercise of proper care. It was held that the vibrations and dust were a public nuisance and an injunction had been properly granted to restrain the quarry owners from carrying on their business in such a manner as to occasion a nuisance to her majesty’s subjects by dust or by vibration. Here Lord Denning said that: “public nuisance must be referable to the generality of Her Majesty’s subjects. So widespread in its range, so indiscriminate in its effects …. that it becomes the responsibility of the whole community.” So an act becomes public nuisance when its effect is on the public as a whole rather than on one individual.
RELEVANCE IN THE LAW OF TORTS
Public nuisance, may lend itself to an action in torts by an individual only if that individual can show that he has suffered damage over and above that suffered by the public, e.g. if you go and buy food and contract cholera, you can show you have suffered damage over and above the public and so you must be able to claim. In Southport Corpn. v. Esso Petroleum the defendants’ tanker ran aground in the Ribble estuary and to save life aboard, the master lightened the ship by jettisoning a large quantity of oil This oil was carried onto the plaintiffs’ beach and they spent a great deal of money to clear it. The trial judge gave judgment in favour of the defendants on the ground that the plaintiffs had failed to prove negligence. This was approved on appeal to the House of Lords. In the House of Lords, Lord Denning said that the term public nuisance covers a multitude of sins, great and small. Public nuisance is not dependent on user of land. See also Halsey v. Esso Petroleum; Tate & Lyle v. Greater London Council.
Both private and public nuisance are based on annoyance and inconvenience. In other words, the constituent elements are conceptually the same. The difference between them lies in the degree and range of exposure.
What is Private Nuisance?
Private nuisance lies in general for indirect non-trespassory interference being an action on the case. A defendant is guilty of private nuisance, if he does an unreasonable act which either (a) indirectly causes physical injury to land; or; (b) substantially interferes with another’s use or enjoyment of his land or of an interest in land or both. The crux of nuisance then is unreasonableness of conduct. Consequently, problems in nuisance really turn on reasonableness. In determining the reasonableness, the courts look at both the defendant’s conduct and its effect on the plaintiff. Note however that when interference is alleged with a plaintiffs enjoyment, the surrounding circumstances are relevant, but not so relevant when the alleged interference is with material injury to property.
Some common forms of private nuisance are: (i) noise — excessive tolling of church bells; (2) pestilential smells; (3) vibrations; and (4) escaping fumes from factories. Private nuisance represents a balancing of conflicting interests, (e.g. taxi horns, radio music), and the courts are principally concerned with the mutual adjustment of rights. Living in close communities as we do nowadays, one has to put up with a reasonable degree of nuisance.
As was said in Bamford v. Turnley, per Baron Bramwell: “Those acts necessary for the common and ordinary use and occupation of land and houses may be done, if done reasonably without risking an action in nuisance e.g. burning weeds, emptying cesspools and making of noises during repairs.” And so in Sedleigh-Denfield v. O’Callagan the boundary between the appellant’s premises and those of the respondents was a hedge and a ditch, both of which belonged to the respondents. Without informing the respondents, a trespasser laid a pipe in the ditch and some three years later, when this pipe got blocked, the appellant’s garden was flooded. It appeared that one of the respondents’ servants had cleared out the ditch twice yearly. The appellant claimed damages in nuisance. It was held that he would succeed because the respondents who knew or ought to have known of the existence of the nuisance, permitted it to continue without taking reasonably prompt and efficient action to abate it. In that case, the flooding was considered as going beyond what the appellants could reasonably be expected to endure and so it was nuisance.
In determining whether an act constitutes private nuisance, the courts take certain factors into account. We shall consider these factors seriatim:
(a) The purpose of the defendant’s conduct — mental state
If the defendant’s primary object in doing an act is to injure his neighbour, then that conduct is in law unreasonable. Thus in Christie v. Davey, the parties lived in semi-detached houses. The plaintiff gave music lessons and held musical parties in his house, which annoyed the defendant considerably. Maliciously and for the purpose of vexing and annoying the plaintiff, the defendant blew whistles, knocked on trays or boards, hammered, shrieked and shouted, when lessons or parties were in progress in the plaintiff’s house. It was held that the interference could be restrained by injunction, but it would be otherwise, if both parties had been perfectly innocent, i.e. if the interference had been merely coincidental. This means if a defendant does what he is reasonably expected to do, even if maliciously, he will not be liable, even if his conduct injures his neighbour.
Compare the above case with Bradford Corporation v. Pickles. Here the appellants owned water works and the respondent owned land from which water flowed naturally on to the ground from which the appellants enjoyed a valuable supply of water. The defendant commenced operations on his land, which had the effect of discolouring and diminishing the appellant’s water supply and they sought an injunction to restrain his harmful activities which, they alleged, were actuated by malice and with a view to inducing them to buy the land. It was held that the injunction would not be granted because the respondent’s action was lawful and no matter how ill his motive might be he had a right to act as he did. See also to the same effect: Hollywood Silver Fox Farm v. Emmett.
(b) Suitability of the locality
The law realises that it is governmental policy to divide up land for various uses. The courts therefore consider whether a defendant is carrying out his activity in a place suitable or designated for it. So it may well be a nuisance to set up a factory in a residential area or set up a stable there or use residential area for prostitution as in Thompson-Schwab v. Costaki. In that case, the plaintiff lived in a good residential street in the West End of London and the defendants used a home in the same street for the purposes of prostitution. It was held that this was prima facie evidence of nuisance, as having regard to the usages of civilised society and to the character of the neighbourhood, the defendant’s activities amounted to an unreasonable interference with the comfortable and convenient enjoyment of the plaintiff’s residence and an interlocutory injunction was granted to restrain it. Or using premises as a sex shop, see Laws v. Florinplace Ltd. On persistent unwanted phone calls see Khorasandjin v. Bush.
Aidoo v. Adjei held that it is nuisance to operate a chop bar near a residential area! In Ball v. Ray14 it was held that keeping horses in a residential area was actionable nuisance. But, in Moy v. Stoop, a day nursery was set up in a residential area with its children weeping. It was held that, prima facie, the crying of the children was not actionable, but if it can be proved that the children cry as a result of neglect, then it may be actionable nuisance.
What about cockerels crowing at ungodly hours? This question is important because of the keeping of poultry in homes these days. In Leeman v. Montagu the plaintiff bought a house in an area which was partly rural, but largely residential. In an orchard which was about 100 yards from the house, the defendant kept some 750 cockerels which were in the habit of crowing from 2 a.m. until 7 or 8 a.m. This noise made it impossible for the plaintiff to sleep. It was held, that a nuisance had been proved and the plaintiff was entitled to an injunction to restrain the defendant from carrying on the business of poultry breeder in this manner. On the question of the importance of sleep, see also Halsey v. Esso Petroleum.
Again, in Sturges v. Bridgman, a confectioner and a physician occupied adjoining premises. In connection with his business for more than 20 years, the confectioner used two large pestles and mortars and the noise and vibrations did not seem to the physician to be a nuisance until he built a consulting room at the end of his garden against the wall of the confectioner’s kitchen in which the pestles and mortars were operated. The physician sought an injunction to restrain the use of the pestles and mortars in such a manner as to cause him annoyance. It was held that he would succeed. The confectioner could not claim that he was protected by prescription, since until the consulting room was built there had been no actionable nuisance.
This decision may also be explained in terms of the unarticulated value the court gave to the physician’s service to society as compared to that of the confectioner.
Nature of use to which defendant puts land
Generally, natural user is not per se conclusive as to reasonable use (Note that, unlike Rylands v. Fletcher the defendant can put his land to non-natural use so long as his conduct is reasonable). Thus in Matania v. National Provincial Bank, temporary noise and dust caused by alterations being made to a building were held to be a nuisance since the interference was substantial. This case also shows that the duration of the unreasonable conduct is not conclusive. It could be nuisance even if only temporary. Where conduct is inevitable but could be mitigated, it will be held to be unreasonable if not mitigated.
In C.F.C. Construction Ltd .v A.T.C.C., the plaintiff brought an action to restrain the defendants or their agents from continuing or repeating nuisance by dumping garbage and refuse which emitted pestilential smells in a quarry adjoining their properties. Justice Crabbe found, as a fact, that the garbage dumped emitted pestilential smells which amounted to actionable nuisance. In Abotchie v. Saad the suitability of the locality for the defendant’s trade was considered by justice Crabbe as of great importance. The plaintiffs complained that the defendant installed vibrating machine emitting offensive smells. When the plaintiff complained, the machine was removed only to be reinstalled later and the defendant then the defendant turned deaf ears to all the plaintiffs’ complaints. The court held that, as the defendant had not proved or adduced evidence to show the suitability of the locality for his activity he was liable and injunction was granted.
Authorised Acts — Statutory Duties
Can nuisance lie against one under a statutory duty? The law is that where one operates under a statute one must use reasonable care. Therefore theoretically, a person operating under a statute, may be liable in nuisance. A case in points is Manchester Corpn v. Farmworth. There is a farmer, the respondent ,sought damages and injunction against the appellants on the ground of nuisance. The respondent alleged that poisonous fumes were emitted from the chimneys of generating stations erected by the appellants in pursuance of powers conferred by statute. It was held that the appeal will be decided in favour of the respondent as the appellant has not shown that they have used all reasonable diligence in preventing their generating station from creating a nuisance. Thus it is clear that the common law does not override the statute . It simply requires that for a person discharging a a statutory duty to escape liability, the person must prove that he or she has carried out the task reasonably.
Nature of the Damage.
As Lord Reid said in Wagon Mound (No.2), recovery of damages in private nuisance depends on foreseeability by the defendant of the relevant type of damage. Being an action on the case and not a trespass, proof of damage is necessary.
Damage may fall in one or other or both of the following categories:
a) it may be material injury to property:
b) personal discomfort or inconvenience .
What is the distinction between sensible material interference with the plaintiff’s property and personal discomfort or inconvenience? The distinction is discussed hereafter.
a) In St. Helen’s Smelting Co. v. Tipping the plaintiff bought an estate consist6ing of about 13200 acres near to the +defendant’s copper smelting works . The vapour from the works proved injurious to the plaintiff trees and crops and he claimed to be entitled to damage . It was held he would succeed . That the jury was correctly directed that an actionable injury was one producing sensible discomfort and that every man unless enjoying rights obtained by prescription or agreement was bound to use his property in such a way as not to injure that of his neighbour . The law was not concerned with trifling inconveniences and everything had to be considered from a reasonable point of view. Here suitability of locality is held to be defence if there is proof of sensible injury to property.e locality is not relevant factor where property damage is concerned. See also the Canadian case of Schenck v. Province of Ontario.
The basic principles then are:
a) Proof of sensible damage to property;
b) injury must be substantial; and
c) the injury must have diminished the value of the property.
If (c) is proved, it is irrelevant to plead suitability of the locality. As to the meaning of material injury the courts have not decided whether the test is scientific or ordinarily by reference to the custom of the trade, but see Hunter v. Canary Wharf Property is not defined either. In practice, however, the courts consider the suitability of the locality relevant: see Pullback Colliery v. Woodman per Erie Lorebury.
(b) Substantial interference with enjoyment (Personal discomfort or inconvenience)
Where the complaint is in respect of personal discomfort, then such interference must be substantial. The plaintiff, however, need not prove actual injury to health; in fact, the loss of one night’s sleep is sufficient. However, it is not nuisance merely to operate a power station near a church. So in Heath v. Brighton Corpn. the plaintiffs, the incumbent and trustees of a church, sought an injunction to restrain the alleged nuisance caused by the defendant’s electricity works which were in the immediate vicinity of the church. It was not alleged that die low hum or noise of the machinery had led to a diminution of the congregation; the only person who was personally annoyed was the incumbent. But he was not prevented from preaching or conducting the accustomed services. It was held the plaintiffs had not shown a sufficiently serious annoyance to entitle them to the injunction which they claimed.
Interference may be substantial even though temporary: see Matania v. Nat. Provincial Bank. Here dust and temporary noise were held to be a nuisance. See also De Keyser’s Royal Hotel Ltd. v. Spicer Bros. Ltd.
Under this head of damage the courts hold the suitability of the locality as important. Nowadays, the courts are developing a doctrine whereby a defendant guilty of a situation likely to cause injury is likely to answer in nuisance. In Bolton v. Stone during a cricket match, a batsman drove a ball out of the ground and it hit and injured the plaintiff. The ball traveled nearly a 100 yards and cleared a protective fence which was, in effect, 17 ft. above the cricket pitch and 78 yards from the striker. There was evidence that the ball had been hit out of the ground on some six occasions during the last 30 years. It was held the plaintiff was not entitled to damages cither in negligence or nuisance as the probability of such an injury would not be anticipated by a reasonable man.
Who can sue in nuisance?
The law is that one who has proprietary or other interest in the land may sue. The owner can sue, if he has possession as well as the tenant. However, a reversioner can sue only if he can show that his proprietary interest in the reversion has been permanently interfered with. It is doubtful though if a person who is merely in occupation can sue. In Malone v. Laskey, the defendants let a house to a tenant who sub-let it to a company, whose manager resided on the premises with his wife the plaintiff. The defendants were not liable to do repairs to the house, but, following complaints to the defendants, they sent two men to put an iron bracket underneath a water tank in the lavatory. Three months later, due to vibration from machinery in the defendant’s premises adjoining the house, the bracket fell upon and injured the plaintiff. It was held that the plaintiff was without a remedy. Here the plaintiff failed because she was in occupation but had no interest in the land.
However, in Moss v. Christchurch Rural Council, a spark flew from the defendant’s steamroller (as it was at the material time it constituted a nuisance) and the resulting fire destroyed the plaintiff’s cottage which was let to a weekly tenant. It was held that the plaintiff could recover the difference between the money value of his interest in the property before and after the fire, not the cost of rebuilding. It must be noted that in the above case title was not discussed.
Who can be sued?
Generally, it is the one (although he may have given up possession) who commits the nuisance, even if done through servants or agents. He is liable for the acts of independent contractors only if the act done is one which, in its very nature, involves a special danger of the nuisance being complained of.
In Bower v. Peate the parties owned adjoining houses and the defendant employed a contractor to pull down his and rebuild it. The contractor failed to provide sufficient support during the excavation of the foundations and the plaintiff’s house was damaged. Cockbum C.J. laid down a test for this. His test has been criticised as being too wide. The occupier liable for nuisance by the independent contractor if from the instructions he gives, a nuisance was likely to occur.
Acts of trespassers (failure to remedy)
The House of Lords settled this in Sedleigh-Denfield v. O’Callaghan.” The rationale here is that an occupier of land continues a nuisance if, with knowledge or presumed knowledge of its existence, he fails to take steps to bring it to an end, when he has ample time for doing so and adopts it if he makes use of the structure causing a nuisance. It was held per Moulton L.J. in British Road Services v. Slater, that a branch of a tree on a land by the road was a continuing nuisance although the defendants were absolved on the grounds that the defendants having inherited the nuisance were not liable for the consequences of failing to remedy it until they were aware that it was a nuisance or with ordinary and reasonable care, should have become so aware.
In Tarry v. Ashton, the defendant was in occupation of a house from the front of which a heavy lamp projected over the pavement. As the lamp was becoming dangerous, the defendant employed an independent contractor to repair it. Nevertheless, as a result of the contractor’s negligence, the lamp fell down and injured die plaintiff. It was held that the plaintiff was entitled to damages as the defendant was in breach of his duty to make the lamp reasonably safe.
Prima facie therefore the defendant is not liable if he did not create the nuisance. But, if, in entering the premises, he knew or ought to have known of it, then he is liable. This applies to patent and latent nuisances. But, even though a nuisance is patent to the eye, when a landlord enters the premises, he will not be liable if it can be shown that no reasonable man would have considered it as a nuisance.
Personal injuries
These are recoverable in respect of public nuisance. Private nuisance has no authority, but, in principle, where there is damage to the person as well as property, then such consequential damage ought to be recoverable.
Defences to nuisance
Prescription: This lies where a defendant can show that he has acquired a right to commit the nuisance. To acquire this rights he must have committed it for at least 20 years before the action; he must have done it openly, without a show of force, and without the plaintiff’s permission: the maxim is “nee vi, nee clam, nec precario.” However this defence is not available in respect of public nuisance.
Consent: Must not be induced by fraud etc.: see Kiddle v. City Business Properties Ltd..
Statutory authority: (a complete defence) This must be done reasonably though: see Northwestern Water Bd. v. Dept. of Transport;’10 if a statute authorised an activity, then the defendant will not be answerable for inevitable interference. But it is for the defendant to prove inevitability.
In Haley v. London Electricity Board! the appellant a blind man, on his way to work, tripped over a hammer with a long handle which the respondents had leaned against a railing to protect pedestrians from an excavation which they had made. There was no negligence on the pail of the respondents and the defendants were found to have given adequate warning to people with good sight. It was held that: “since it was reasonably foreseeable that blind people will pass that way, the defendants had failed to discharge their duty to take reasonable care not to act in a way likely to injure any person who may reasonably be expected to walk along the road. Lord Guest said there is … no authority … which would compel one to take the view that the obligation ol those responsible for the safety of foot pavements is restricted to those persons who have normal sight … they must have regard to all road users, which includes the blind and other persons.” So when a person operates under a statute, he will only be protected if in discharging his statutory duties he acts reasonably. See also Allen v. Gulf Oil Refinery Ltd.
Abatement of nuisance
It is in reality a defence to trespass to land, where the defendant can show that he committed the trespass to abate a nuisance to him. In Lemmon v. Webb43 without giving notice to the appellant and without trespassing on his land, the respondent cut off some branches of the appellant’s trees, which were overhanging his soil. It was held that the respondent was entitled to do this.
But abatement is a remedy which the law does not favour and the House of Lords said that if there are two ways of abating a nuisance the less mischievous is to be followed.
Remedies
These are three: damages, injunction and abatement.
But it must be borne in mind that injunction is a discretionary remedy which the court can refuse to grant, even though the plaintiff proves his case.
The plaintiff is entitled to compensation for the damage he has suffered as a result of the nuisance. Thus he may recover for: (a) physical damage to his property; (b) depreciation in the value of his property; and (c) loss of business from the nuisance and (d) personal injuries.
Where the nuisance is a continuing one, the award of damages in one action for nuisance does not bar subsequent actions.