Tort Presentation

Question 6

Ezra

Issue:

- Whether Ezra can bring claim against Gary for creating smoke which results in his

students having to remain indoors and the discoloration of his walls.

Fiona

Issue:

- Whether Fiona can bring an action in nuisance against Ezra for the reduction in her

customers due to the noise his students create.

- Whether Fiona can bring an action against Gary for creating smoke which results in

her having no customers during lunch time.

Gary

Issue:

- Whether Gary can bring an action against Ezra due to one of his students breaking the

truck of his marble bull elephant.

Rule:

The doctrine of nuisance in tort refers to situations or actions that interfere with the

use or enjoyment of land. Yet, not every annoyance or interference will be liable as a
nuisance under tort law. The nature and extent of the interference, the character of the

neighborhood, and the reasonableness of the defendant's behavior are the three elements

considered by the courts in determining the seriousness of the interference. Per Clerk and

Lindsell, “ a nuisance is an act or omission which is an interference with , disturbance of or

an annoyance to a person in the exercise or enjoyment of: (a) a right belonging to him as a

member of the public, when it is a public nuisance; or (b) his ownership or occupation of land

or some easement, profit, other right used or enjoyed in connection with land when it is a

private nuisance.”

For a claimant to bring an action in private nuisance they must have an interest in the

land. Any individual whose conduct causes a nuisance can be sued in private nuisance. The

originator is not needed to live on or own the land from which the nuisance arises. A nuisance

creator may also operate in public settings.

The courts will consider a variety of variables in assessing whether the Defendant's

act or omission constituted a nuisance. Firstly, the nature of locality, this is only relevant

where the nuisance complained of interferes with enjoyment of land. It should be noted that

interference that is appropriate in one area may be unreasonable in another. Considerably, the

character of a location may vary throughout time. Certain activities may be approved by

planning authorization, reclassification, and area zoning. The claimant in Sturges v

Bridgman was a doctor who sued a confectioner for noise created by his industrial

equipment, including mortars and pestles. The court ruled that there was a nuisance despite

the fact that the area in which they both worked consisted primarily of physicians' consulting

rooms, noting that what might constitute a nuisance in a quiet residential area would not

necessarily be so in a bustling industrialized one.

 Secondly, the Utility of the Defendant’s conduct is useful for determining remedies.

Simply because an action is useful to the community or serves a public purpose does not

absolve the Defendant of culpability for nuisance. Winfield & Jolowicz observe that ‘the

court will not accept the argument that the claimant should put up with the harm because it is

beneficial to the community as a whole, for that would amount to requiring him to carry the

burden of an activity from which many others benefit.’

Thirdly, the duration and timing of the actions complained is also to be considered.

How long the nuisance goes on for and when it happens will also affect whether it is

considered unreasonable or not. Something noise may be reasonable if it happens in the

middle of the day, for example, but not late at night or early in the morning. In Halsey v Esso

Petroleum, the court found that the noise caused by filling petrol tankers was reasonable and

so not a nuisance at 10am but was a nuisance when it happened at 10pm. In Bolton v Stone,

Lord Justice Jenkins observed that nuisance is “a state of affairs”. Whether the defendant's

behavior is temporary or permanent is a key aspect in establishing its reasonableness. Thus, a

temporary inconvenience, such as noise and dust from demolition or building work on the

defendant's land, may not be considered unreasonable, whereas a permanent inconvenience,

such as noise and smoke from the defendant's factory, is more likely to be considered

unreasonable and, thus, actionable. But in the case of Crown River Cruises Ltd v

Kimbolton Fireworks Ltd, the defendant was held liable for a 15-20-minute fireworks show

was determined to be actionable in nuisance. The fireworks caused debris to burn and fall on

the claimant's yacht.

Additionally, the court also looks at if the defendant acted maliciously. In the case of

Hollywood Silver Fox Ltd v Emmett, the defendant out of spite fired guns on his land close

to the boundary of the claimant’s land during breeding time in order to cause the claimant’s
silver foxes to miscarry. It was held, he was liable in nuisance for the damage to the foxes,

since harm cannot be reasonable where it is motivated by malice.

If a Defendant uses his land in a way that he knows would cause injury to his

neighbor, and such use by the Defendant is unreasonable, the Defendant will be accountable

for the predictable consequences. The Defendant cannot effectively argue that he felt he was

entitled to do what he was doing. Additionally, if the Defendant knew or should have known

that his activities or omissions would create reasonably foreseeable harm to this neighbor, he

has a duty to avert such consequences.

Moreover, the court would take into consideration if the acts of the defendant were

foreseeable. The House of Lords tried to define the role of foreseeability in nuisance in the

case of Cambridge Water Co v Eastern Counties Leather plc. In this case, the defendants

were found not responsible for nuisance because their tanning processing chemical

unexpectedly leaked into the ground, polluting the water source. The Defendants were able to

avoid culpability since the seepage was unforeseeable at the time. The Defendant's behavior

was deemed to be innocent (based on the known information at the time), but later

understanding revealed its dangerous consequence.

Application:

Fiona:

Fiona would be able to bring an action against Ezra in private nuisance because she

has an interest in the land. The students in Ezra’s Kindergarten school create noise which

causes a reduction in the number of customers she receives during lunch time at her dinner.
Considering that the location has a mixture of private homes, shops and restaurants. This

means that the shrieks of children from a school would be considered a nuisance in a strictly

residential area but not in an area of both residential and commercial business. This can be

contrasted with the case of Sturges v Bridgman due to the area being a mixed community.

The noise complained about only happens during the day, during the children’s lunch

time which is usually about 1hour. As seen in the Halsey v Esso Petroleum case noise

during the day is reasonable but it may not be reasonable at night. If the children were

making noise during the night, it would be considered a nuisance but during the day it seen as

reasonable. Also, from the case of Bolton v Stone, it was decided by Jenkins LJ, a temporary

inconvenience may not be considered as unreasonable. The noise that Ezra’s students create

is not a permanent inconvenience, so it cannot be deemed as unreasonable.

There is no evidence that the noise from Ezra’s school was a result of malicious

intentions, as seen in Hollywood Silver Fox Ltd v Emmett, this provides more evidence that

he is not likely to be liable for the tort of nuisance.

It would be considered unforeseeable that the noise from Ezra’s school would result

in a reduction of customers that come to Fiona’s diner during lunchtime. As seen in the case

of Cambridge Water Co v Eastern Counties Leather plc.

Ezra can rely on the defence of necessity because a school can be seen as benefit for

the community.

In conclusion, Fiona would be able to bring a claim against Ezra in private nuisance

for the noise that his students create during their lunch time, but the claim would fail.
 In relation to Gary, Fiona would be able to bring a claim against him for the smoke he

burns during lunch time in protest to one of Ezra’s student’s breaking his marble bull

elephant, because as a result of his actions she has no customers in her diner during this

period. The nature and locality of the area although not strictly residential does not permit

Gary to burn a pile of leaves. As stated under the Fire Service (Fees) Order 2020, persons

who wish to use an open flame outside of their homes to have a bonfire which could generate

a situation where the public’s health and safety would be of concern, will now be required to

purchase a Burn Permit from the Barbados Fire Service.

Although the time and duration of Gary’s actions were relatively short he would still

be liable. As see in the case of Crown River Cruises Ltd v Kimbolton Fireworks Ltd,

although the actions only lasted 15-20 minutes, they were still liable as the fireworks caused

debris to burn and fall on the claimant's yacht. The smoke that Gary created caused Fiona to

have no customers during that period, which would have negative financial consequences on

her business.

Additionally, Gary’s actions can be seen as malicious because he did it to protest what

one of Ezra’s students did. In the case of Hollywood Silver Fox Ltd v Emmett, the

defendant was found liable for nuisance as his actions were deemed to be malicious. Hence,

Gary can expect a similar outcome.

Furthermore, Gary could have reasonable foreseen that his actions would have a

negative impact on not only Ezra and his students, who were the target but on the community

as a whole. This can be contrasted with the case of Cambridge Water Co v Eastern

Counties Leather plc due to Gary’s actions being foreseeable.

There are no applicable defences for Gary’s actions.

 The remedies available to Fiona based on Gary’s actions are an injunction to stop him

from continuing the nuisance and also damages to compensate her for her loss in customers

during the period.

In conclusion, Gary is liable for the loss of Fiona’s customers in her diner during

lunch time as he burns a pile of leaves in protest which pollutes the air with smoke.

Gary

Gary would not be able to bring a claim against Ezra due to one of his students

breaking a marble bull elephant’s truck in his garden.

Following the judgement of Luxmoore J in Vanderpant v May fair Hotel Co Ltd,

which states that “it is necessary to determine whether the act complained of is an

inconvenience materially interfering with the ordinary physical comfort of human existence,

not merely according to elegant or dainty modes and habits of living, but according to plain

and sober and simple notions obtaining among the English people.” The breaking of the truck

of his marble bull elephant would not constitute a nuisance as it does not interfere with his

ordinary physical comfort of human existence.

It does not appear that the actions of the students were maliciously done, which can be

contrasted with the case of Hollywood Silver Fox Ltd v Emmett.

Ezra may have been able to foresee that by his students throwing sticks and stones

into Gary’s Garden something could have been broken. The issue in Goldman v. Hargrave

is a person's culpability for a nuisance that has been produced by a person who he is

responsible. The fact that the defendant took all reasonable precautions does not exonerate
him from accountability, as the necessary control mechanism is located within the concept of

reasonable user. Yet, this does not imply that the defendant should be held accountable for

damage that he could not reasonably anticipate.

In conclusion, Ezra would not be liable in the tort of nuisance as the breaking of an

ornament in Gary’s Garden does not cause damage to his property.

Ezra:

Ezra would be able to bring a claim against Gary for his house becoming discolored

and his students having to remain inside due to Gary burning a pile of leaves during the week.

Similarly, as in the situation with Fiona and Gary, Gary does not have not have the

permission to burn leaves on his property, so that in itself is illegal. This would be the same

whether it was done in a strictly residential place or in a hybrid community, as this one.

It does not matter what time of the day Gary chose to burn the leaves that fact that his

actions caused damage to Ezra’s house is sufficient. Similarly, in the case of Crown River

Cruises Ltd v Kimbolton Fireworks Ltd, the defendant was held liable in nuisance for 15-

20-minute fireworks show which caused debris to burn and fall on the claimant's yacht.

Gary’s actions were indeed malicious which further makes him culpable in nuisance.

In the case of Hollywood Silver Fox Ltd v Emmett, the defendant was found liable for

nuisance as his actions were deemed to be malicious. Hence, Gary can expect a similar

outcome.

Moreover, Gary would have been able to reasonable foresee that his actions would

have negative impact on Ezra as he was the main target. Gary negligently burnt the leaves
knowing that Ezra and his students would somehow be impacted. This can be contrasted with

the case of Cambridge Water Co v Eastern Counties Leather plc.

Gary is no afforded any appropriate defence in this situation.

The court may grant Ezra and injunction to stop Gary from further continuing with the

nuisance and they may award him damages to compensate for his house being discolored.

In conclusion, Gary is liable in nuisance for burning leaves which left Ezra’s house

discolored and limiting the movement of his students.

Types of nuisances:

- Amenity nuisance (quiet enjoyment) locality, reasonable, substantial

- Encroachment

- Direct physical injury to neighbor’s land