NUISANCE + RYAN V FLETCHER:

In the instant case, I will be discussing the liability of the defendant Eco limited who is charged with a
claim under the tort of private nuisance by four different claimants and I will be discussing each claim
individually and its corresponding remedy, if available.

Private Nuisance is defined as ‘an unlawful interference with a person’s enjoyment of land, or some
right, or in connection with it.’ In order to establish their claim, Mr. and Mrs. Jones need to prove that
there has been an unlawful interference with their use and enjoyment of land caused by the noised and
dust particles. The noise produced caused Mrs. Jones to cancel her regular yoga classes their sleep was
disturbed. Moreover, Mr. Jones asthma aggravated due to the sawdust emanating and the invisible
particles damaged his exotic shrubs.
The general is that the courts will examine the purpose for which the land was let for and if the nuisance
was a necessary consequence of the letting, if so then the landlord will be liable for authorizing the
nuisance. As per the case of Tetley v Chitty (1986) where a council permitted go-kart club to use their
land for a race track and the nearby residents brought an action in nuisance. The council were held liable
for authorizing the activities of the go-kart club. The noise was an ordinary and necessary incident to go-
kart racing which was the purpose for which the permission to use the land was granted. The nature of
locality where the interference takes place also has an important impact on its degree of
reasonableness. Nuisance will be judged according to the area in which it occurs. If you live next to an
industrial area, you have to live up to the noise which is considered normal there. Per Thesiger LJ in
Sturges (1879), “what will be a nuisance in Belgrave square would not necessarily be so in Bermonday.”
However, it was held in Rushmer (1906) that excessive noise may be a nuisance even in a commercial
area. However, the time and duration of the alleged interference must be considered to determine if it
constitutes an actionable nuisance. The courts approach toward this is the longer the duration and
greater the frequency of interference, more likely it will be found to be a nuisance. It was held in
Harrison (1981) if a construction work though being carried out in a reasonable way is carried out at
night disturbing the neighbor’s sleep, it may amount to actionable nuisance. Another such case was De
Keyser Royal (1914) whereby an injunction was provided to prohibit work at night despite the fact that
the work was temporary in nature. The interference was considered unreasonable as it interfered with
the neighbor’s sleep. Moreover, regarding the personal discomfort, the court in St Helen Smelting Co
(1865) distinguished between nuisance causing actual damage to property and personal discomfort. The
courts held that where there has been physical damage to the property, the locality principle has no
relevance. It is no defense that the defendant came to nuisance. However, in order to merit a response,
the personal discomfort need to be substantial as held in Walter (1851) that interference on another’s
land must be more than ‘fanciful, a mere delicacy, or fastidiousness’ and it must be an inconvenience
materially interfering with the ordinary comfort of human activity. Here we will also discuss the point of
abnormal sensitivity as to the damage caused to the “exotic” shrubs. If claimant’s property was
abnormally sensitive, they cannot complain about an interference which wouldn’t have affected an
ordinary action or his property. The refused the claim in Robinson (1889) and said that if the damage
caused was due to exceptionally delicate nature of the plaintiff’s trade, it won’t amount to nuisance.
Where D’s activity would have interfered with an ordinary use of land in any event, he will be liable
notwithstanding claimant’s operation a in Mackinnon industries (1951). The D action constituted an
unlawful nuisance as fumes were such that they would have even damaged plants with normal
sensitivity, hence he was held liable for causing damage to delicate plants such as orchids. So if the dust
particles were such that they would even damage a normal shrub, only the Mr. Jones would be
successful in establishing his claim, if not then the interference won’t be considered as unreasonable.
Once it has been proven that the interference was unreasonable, it needs to be considered that who can
sue. The claimant must have some interest in land which entitles him to sue. In Malone v Laskey, the
claimant was unsuccessful in her claim as she did not have a proprietary interest and her husband was a
mere licensee. The leading case on this is Hunter v Canary Wharf (1997) where HOL laid down the
principle beyond reasonable doubt that there must be a proprietary or possessory interest of the
claimant to find an action in private nuisance. Moreover, it needs to be proved that the interference
caused the damage i.e. causation by applying “But for test” White (1910); Mr. Jones exotic shrubs
wouldn’t be damaged but for the dust particles originating. Nor would the couple’s sleep and Mrs. Jones
yoga class be disturbed but for the noise emanating from the factory work. Eco Ltd. Is the creator of
nuisance in all these instances so, apart from Mr. Jones claim of aggravating his asthma, the remaining
are recoverable.
There are two possible defenses that Eco ltd can take, the first one is “20 years prescription”. This
defense is available when the nuisance has interfered with the claimant’s interest for more than 20
years and the time will begin from the moment the claimant became aware of the nuisance. In Sturges
(1879), prescription was pleaded but the defense failed because the use of land prior to the construction
of the consulting room was not preventable or actionable and therefore it was not capable of founding a
prescription right. The claimant must have knowledge that D’s conduct amounts to nuisance. The
second defense available is “coming to nuisance”, it is a well-established rule that claimant can sue even
though the nuisance was in existence long before the claimant arrived. It was held in Bliss v Hall that it is
of no justification for the rule that it would be unreasonable to expect someone not to purchase land
because a neighbor was abusing their rights. The COA reaffirmed Sturges (1879) in Coventry that D’s
activity did amount to nuisance despite its longevity and it is of no defense to argue that the claimant
came to nuisance. Thereby, in the light of above discussed case laws, Eco ltd will fail to get a defense in
both of these categories.
However, Mr. and Mrs. Jones will get the remedy for personal discomfort and property damage only
since personal injury is not recoverable in private nuisance. There are two remedies available, one is
damages and injunction. Since there ha been damage to property, the damages will be assessed
generally by cost of either replacing or repairing the property whichever is less. And damage which
causes personal discomfort and inconvenience such as noise would also be recoverable as held in
Hunter that damages will be awarded in diminution in the value of land or lesser enjoyment of land but
not for personal injury. However, they cannot get injunction. The court may sometimes grant “damages
in, lieu of injunction” but it does not apply here; the shelfer rules provide that whether for a mandatory
injunction pr to restrain a continuing nuisance it might be the appropriate remedy. But UKSC in Coventry
v Lawrence reminded the judges of the broad discretion they have beyond these rules.
The third claimant is Westport Hotel; however, they may claim under public nuisance. Public nuisance
becomes actionable in tort law if the claimant suffers ‘particular damage’ over and above the damage
suffered by the public generally. In this case Westport hotel suffered greater loss than the villagers.
Remedies for personal discomfort, personal injury. And property damage is available under this
nuisance. But since the damage is ‘pure economic loss’ which is not recoverable in any branch of tort,
hence no remedy will be available to the Westport hotel.
In the last scenario, it’s a claim of Ryan v Fletcher whereby the claimants are Olga and Mr. Jones. The
classic definition of this principle was given by Blackburn J. He stated, “We think the true role 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 natural consequence of its escape.” It needs to be proved that
the D brought on his land for his own purpose something likely to do mischief. In Giles v Walker, the D
was not held liable when seed from his land got blown to the neighboring land and damaged his crops
since there can be no liability under Rylands for something which naturally accumulates on the land.
And the thing must also be accumulate for D’s own purpose (Dunne, 1964); , in this case D brought
explosives to his land. Secondly, the object of mischief must ‘escape’. The meaning of escape for the
purpose of Rylands is; escape from a place where the D has occupation or control of or over to a place
which is outside his occupation or control’. This means that because of the stones which escaped from
the explosion in factory resulted in property damage to Mrs. Jones and personal injury to Olga. Thirdly,
the use must constitute as non-natural; in the instant case it was being used to cause blast. Lord
Moulton defined it as bringing with it an increased danger. The rule in Transco plc favored a restrictive
approach confining it to exceptional circumstances where the occupier brought some dangerous thing
onto his land which poses an exceptionally high risk to neighboring propery should it escape. The clarity
to “dangerous’ came with Lord Bingham’s peech in Transo, the question of whether the thinh brought
onto land is dangerous is inextricably linked to the Ds use of land. Fourthly the HOL in Transco plc and
Cambridge water Co determined the rule will apply only is the loss suffered by claimant is reasonable
foreseeable and that it is in reality an extension of tort of pvt nuisance to isolated escape from land and
it is not necessary that the escaoe shoyld be reasonably foreseeable. In this case both personal and
property damage was foreseeable for mr joines but not olga which was accidental.
Mr jones under the rule laid down in Transco plc can sue for damages since he had a proprietary
interest in the land damaged. However, Olga can’t sue for personal injury, alternatively he can file a case
under negligence. No remedy will be available to Olga and hence damages won’t be recoverable.
There following defences are available; where there is claimants fault partly or entirely in
escape(ponting), or there is an unforeseeable act of a stranger, an Act of God or a statutory authority,
and Consent. In the provide scenario, no possible defence will be available to Eco as it falls under none
of the above categories. However, the claimant Mr. Jones may get remedy for damages. He will be
successful in his claim for damages for already discussed above, property damage.