LAW of tort

Nuisance (Public and Private)

NUISANCE
The word 'nuisance' is used in popular speech to mean any source of inconvenience or
annoyance, but the tort of nuisance has a more restricted scope and not every inconvenience
or annoyance is actionable. Nevertheless, this tort 'has become a catch-all for a multitude of ill-
assorted sins'/ such as the emission of noxious fumes from a factory, the crowing of cocks in
the early hours of the morning, the obstruction of a public highway, the destruction of a
building through vibrations, and the interference with a right of access to private property. The
remedies available to one who complains of a nuisance are:
(a) damages;
(b) an injunction to restrain further nuisance; and
(c) abatement.

Public nuisance
A public nuisance is committed where a person carries on some harmful activity which affects
the general public or a section of the public, for example, where the owners of a factory cause
fumes and smoke to pollute the atmosphere in the locality, or where an obstruction is caused
on the public highway. Public nuisance is basically a crime (against the public), actionable by the
Attorney General. It is a tort, actionable by an individual claimant, only where the latter can
show that the defendant's conduct has caused him 'particular damage' over and above that
suffered by the general public.1 The reason for this requirement of proof of particular damage is
that where a wrong is committed against the community at large, it is considered to be more
appropriate to leave the action in the hands of the Attorney General as the representative of
the public, rather than to allow the defendant to be harassed by an unlimited number of suits
by private individuals, all complaining of the same damage.

1
Ramsaran v Sandy (2004) Court of Appeal, Trinidad and Tobago, Civ App No 55 of 2003
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 As to the meaning of 'particular damage', one view is that the claimant must show, that
he has suffered damage which is different in kind, and not merely in degree, from that suffered
by the general public;2 another view is that it is sufficient for the claimant to show that he has
suffered damage which is appreciably greater in degree than any suffered by the general
public.3 Particular damage will include not only special damage in the sense of actual pecuniary
loss, but also general damage, such as delay or inconvenience, provided that it is substantial. 4
In Chandat v Reynolds Guyana Mines Ltd,5 the claimant farmers adduced evidence that
their crops had been damaged by dust escaping from the defendants' bauxite works, but they
were unable to recover damages under public nuisance individually, because none could show
'particular damage'. George J stated that 'before a nuisance can be a public one, it must affect
the reasonable comfort and convenience of a class of the citizenry', and he found that 'whether
one uses the yardstick of a class of citizenry affected by the nuisance complained of or its effect
and widespread range, the only reasonable conclusion which can be arrived at in this case is
that the nuisance complained of must be a public nuisance'.
Examples where 'particular damage' was established are:
(a) where the defendant wrongfully obstructed a public navigable stream by anchoring his
boat there, thus compelling the claimant to unload his boats and transport his cargo by
land at great expense;6
(b) where the claimant intended to let rooms in her house to persons wishing to watch a
procession, and the defendants unlawfully created a structure in the public street which
obstructed the view from the rooms, thus reducing their letting value;7

2
stein (1985) 14 DLR (4th) 263, at 267
3
Southport corp o Petroleum co Ltd 2 All ER 561, at 570, per Lord Denning
4
Walsh v Ervin (19521 VLR 361.
5
(1973) High Court, Guyana, No 249 of 1969 (unreported) (Carilaw GY 1973 HC 341.
6
Rose Miles (1815) 105 ER 773,
7
Campbell o Paddington Corp 119111 1 KB 869
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 (c) where the claimant's sleep was disturbed by the noise of the defendant's vehicles, and
the paintwork of his car, which was parked in the street, was damaged by acid smuts
from the defendant's factory;8
(d) where the claimant, a taxi driver, was struck and blinded in one eye by a golf ball driven
from the defendant's golf course situated next to the highway;9
(e) where a telecommunications company allowed a broken telegraph pole, with cable
attached, to overhang a public road, with the result that a motorist collided with it and
sustained damage;10
(f) where, in the course of carrying out works for the laying of drains, a contractor
obstructed the vehicular access to a hotel by placing there large mounds of earth. 11
On the other hand, no particular damage was proved where, in an action for obstructing a
public way, the claimant proved no damage peculiar to himself other than being delayed on
several occasions in passing along the way and being obliged, in common with everyone else
who attempted to use it, either to take another route or to remove the obstruction. 12

Private nuisance
Introduction:

The principal underlie theme in respect of private nuisance is give and take. Land owner can
expect to put up with some inconvenience from their neighbours but not to an unreasonable
extent. For the action of private nuisance it is not the action of the defendant that matters, but
it is the activity or the state of affairs which has been allowed to continue. While damages

8
Halsey v Esso Petroleum Co Ltd 119611 2 All ER 145
9
castle Links Ltd (1922) 38 TL,R 615
10
Norman v Telecommunication Services of Trinidad and Tobago Ltd (1996) High court, Trinidad and
Tobago, No S 1668 of 1992 (unreported).
11
Pierre v St Lucia (2003) High (unreported).
12
Winterbottom v Derby (1867) LR 2 Ex 316
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might be an appropriate remedy, this tort of nuisance may frequently attract the remedy of
injunction, and since the nature of nuisance is that they are likely to continue.

Definition:

Private nuisance is the continuous, unlawful and indirect interference with the use or
enjoyment of land, or some right over or in connection with it.

N.B:

 To successfully maintain an action for private nuisance, a plaintiff must show the
defendant has, through his actions, continuously and unlawfully (unreasonably)
interfered with the plaintiff’s use or enjoyment of land or some right over or in
connection with it (Walter v Selfe).

 The law accepts that there must be a certain degree of “give and take” between
neighbours and therefore, therefore the interference must be substantial and not
fanciful (Walter v Selfe).

The rationale and origins of private nuisance are quite different from those of public nuisance.
Whereas, public nuisance involves injury to the public at large, and the rights of the private
individual receive protection in tort where he can prove particular damage to himself,
irrespective of his ownership or occupation of land,
the law of private nuisance is designed to protect the individual owner or occupier of land
from substantial interference with his enjoyment thereof. Therefore, the main differences
between the two species of nuisance are these:
(a) public nuisance is a crime, and is a tort where particular damage is proved. Private
nuisance is a tort only;
(b) to succeed in private nuisance, the claimant must have an interest in land. In public
nuisance, there is no such requirement;13

13
Brazier, M, StreetonTorts,9th edn, 1993, London
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 (c) damages for personal injuries can be recovered in public nuisance. Whether such a
claim will lie in private nuisance is doubtful.14
Notwithstanding these basic differences, there may be occasions where the facts of a particular
case will give rise to liability in both public and private nuisance, for example, where large-scale
pollution of the atmosphere causes particular damage to the claimant's property.
Furthermore, the two causes of action share some common principles. For instance, in both
public and private nuisance, the interference complained of must be substantial and
unreasonable, and 'the law of give and take' applies to both.
Categories of private nuisance

Private nuisance falls into three categories:

(a) physical injury to the claimant's property, for example, where the claimant's crops are
destroyed by fumes from the defendant's factory, or where vibrations from the
defendant's building operations cause structural damage to the claimant's house;
(b) substantial interference with the claimant's use and enjoyment of his land, for example,
where the claimant is subjected to unreasonable noise or smells emanating from the
defendant's neighbouring land;
(c) Interference with easements and rights of access, for example, where the defendant
wrongfully obstructs the claimant's right of way, right to light or right of access to his
property.

Requirement for Private Nuisance

1) Continuous Interference.

There must be some continuous interference over a period of time with the claimant’s
use or enjoyment of land. Keyser’s Royal Hotel v Spicer Bros, noisy pile driving at night
during temporary building works was held to be private nuisance.

14
Ibid

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 In British Celanese v Hunt, foil from D’s land caused damage to an electricity substation,
causing the electricity to an industrial estate to be cut off. This had occur once a few
year previously because of the way in which the material was stored. The trial judge
held this to be private nuisance. In both cases the court was of the view that
‘continuous’ can be for one act lasting for a period of time.

In Crown River Cruises v Kimbolton Fireworks, it was held that fireworks display
constituted nuisance when it was inevitable that for the next 15- 20 minutes debris of a
flammable nature would fall upon nearby property, thereby damaging the property in
ensuing fire.

2) Unlawful interference/ unreasonableness- was the defendant's activity reasonable

according to the ordinary usages of mankind living in... a particular society?'

The claimant must prove that the defendant’s conduct was unreasonable, thereby
making it unlawful. The maxim- sic utere tuo ut alienum non laedas-so use your property
as to not injure your neighbour’s.

As to the impairment of the enjoyment of land, the governing principle is that of

a reasonable user- the principle of give and take between neighbouring land (Cambridge
Water v Eastern Counties Leather).

Basis of liability in private nuisance

The main problem in the law of private nuisance is in striking a balance between the right of the
defendant to use his land as he wishes and the right of the claimant to be protected from
interference with his enjoyment of his land. In order to strike this balance, two main
requirements have been developed:
(a) the injury or interference complained of will not be actionable unless it is (i) sensible (in
the case of material damage to land); or (ii) substantial (in the case of interference with
enjoyment of land);
(b) the defendant will not be held liable unless his conduct was unreasonable in the
circumstances.

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Sensible material damage
'Sensible material damage' means damage:
(a) which is not merely trifling or minimal; and
(b) which causes a reduction in the value of the claimant's property. 15
It is easier for a claimant to succeed in nuisance where he can show material damage to his
property than where he complains of interference with his enjoyment of land, since tangible
damage can be more easily observed and measured than personal discomfort or inconvenience
arising from, for example, noise or smells. The leading English case on sensible material damage
is St Helens Smelting Co v Tipping,16 where T, who lived in an industrial area, proved that his
trees and shrubs had been damaged by fumes from the defendant's copper-smelting works. It
was held by the House of Lords that T's action in nuisance succeeded, since there had been
sensible material damage to his property. In the course of his judgment, Lord Westbury drew
an important distinction between cases of material injury and cases of interference with
enjoyment of land. He stated that where there is an interference with enjoyment of land, the
nature of the locality is a factor to be taken into account in deciding whether the acts
complained of are actionable, so that a person who chooses to live in the heart of an industrial
town or in a densely populated part of a large city is not entitled to expect such a high degree
of peace and quiet as one who lives in a residential area. Where there is material damage to
property, however, the nature of the locality is irrelevant and the defendant cannot escape
liability by pleading that his activities were carried on in an industrial district.

Substantial interference with enjoyment of land

Where an action in nuisance is founded on interference with enjoyment of land, such as where
the claimant complains of inconvenience, annoyance or discomfort caused by the defendant's
conduct, the interference must be shown to be substantial.
The classic formulation of the rule is that of Luxmoore J in Vanderpant v Mayfair Hotel

15
Ibid
16
(1865) 11 ER 1483.
7
Co Ltd:17
… whether the act complained of is an inconvenience materially interfering with the
ordinary physical comfort of human existence…

Factors that that court will take into consideration

when determining reasonableness

a) The locality

In Sturges v Bridgman, what would be nuisance in one place, would not necessarily
be nuisance in another. While it is not a defence that someone has moved to the
nuisance, the fact that the locality i.e. industrial area will go a very long way in
determining whether a claimant can complain of nuisance.

b) Sensitivity of the claimant- the standard of tolerance is that of a reasonable

neighbour.

Contrast the following cases.

Robinson v Kilvert, plaintiff’s claim for damages was for damage to an abnormally
sensitive paper stored in the cellar which was affected by heat from the adjoining
premises. The claim failed because the ordinary paper would not have been affected
by the temperature.

In McKinnon Industries v Walker, fumes from D’s factory damaged delicate orchids.
Since the fumes would have damaged flowers of ordinary sensitivity, there was
nuisance.

c) Utility of the defendant’s conduct - it will be unlikely for an activity to amount to

nuisance if it is useful for the community as a whole, taking into account all the
surrounding circumstance. In Harrison Southwark Water, building works carried out
at reasonable time of the day did not amount to nuisance.

17
[1929] ALL ER 296, at 308
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 d) Malice; it is not necessary to establish malice on the part of the defendant but it
may be regarded as evidence of unreasonableness.

Contrast the following cases.

Christie v Davey, C had been giving music lessons when D irritated by the noise,
banged on the walls, shouted, blew whistles with malicious intentions of annoying
his neighbour and spoiling the music lessons. An injunction was granted to restrain
the behaviour.

Bradford Corporation v Pickles, the defendant deliberately diverted water flowing

through his land, away from his neighbour property. The defendant intended to
force them to buy his property at an inflated price. It was held that he was
committing no legal wrong. As no one has a right to an uninterrupted supply of
water.

e) The state of the defendant’s land- an occupier must take reasonable steps to
prevent or minimize danger to the adjoining land from natural hazards on his land.

Leaky v National Trust, the National Trust owned a land upon which there was a
large mound of earth, which naturally eroded and was sliding on P’s property. It was
held that an occupier must take such steps as was reasonable to prevent or
minimize dangers to adjoining land from natural hazards on his land.

f) Duration of the harm The question of the duration of the harm complained of may
arise in two contexts: (a) It has been said that the essence of nuisance is a continuing
state of affairs on the defendant's land which causes damage to the claimant, for
example, a factory emitting constant noise and fumes, or a golf course or cricket
pitch so sited that balls are frequently struck on to the claimant's adjacent land. The
actual damage to the claimant's property may arise from a single isolated
occurrence (such as where, owing to defective electrical wiring in the defendant's
house, a fire broke out which destroyed the claimant's neighbouring house), 18 but

18
Spicer v Smee [1946] 1 ALL ER 489
9
 the essence of the nuisance is the continuing state of affairs (in this latter example,
the faulty wiring). (b) A relevant factor in determining the reasonableness of the
defendant's conduct is whether it is temporary or permanent. Thus, a mere
temporary inconvenience, such as noise and dust from demolition or building work
on the defendant's land, may not be unreasonable, whereas a permanent
inconvenience, such as noise and smoke emanating from the defendant's factory, is
more likely to be held unreasonable and, therefore, actionable. Furthermore, it is a
well-established principle of equity that an injunction will not be granted to
restrain a nuisance which is merely temporary, except in extreme cases and the
claimant will thus be confined to seeking damages.

3) Interference with the use or enjoyment of land or some right over or in connection
with it. – some damage must be suffered to the property or by the person.

The claimant must usually prove damage to the land itself or property; or injury to
health, such as headache caused by noise, which prevents a person from enjoying the
use of their land.

Instances where nuisances have been held to exist.

 Bliss v Hall, smell and fumes invaded the adjoining land.

 Solloway v Hampshire County Council, allowing the roots to suck moisture from
the adjoining soil, thereby causing subsidence.

 Hunter v Canary Wharf (House of Lords), interference with the TV reception by a

tall building could not amount to an actionable public or private nuisance, on the
basis that this was not an interference with the use or enjoyment of land.

 Overhanging trees- Where the branches of trees growing on the defendant's

land overhang neighbouring land, the owner or occupier of the latter property
has the right to abate the (private) nuisance by cutting off the overhanging
branches; and if the overhanging trees cause damage to crops on the
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 neighbouring land, the owner of the latter may also recover damages for the
harm suffered.19 And where trees overhang the highway and cause injury or
damage to a person on the highway, the occupier will be liable in public
nuisance, on the ground that the person injured has suffered 'particular damage'
over and above that suffered by the general public. Further, Titus v Duke is
authority for the proposition that no action lies in private nuisance in respect of
damage suffered by a person in occupation of the same premises on which the
nuisance arose — in this case, damage from a falling sapodilla tree.

 Right of Access- A defendant may be liable for interfering with the claimant’s
right of access to his property. Where an obstruction on the highway prevents
the owner or occupier of the property adjoining the highway from gaining access
to his property. The person responsible for the obstruction may be liable for in
public nuisance (on the basis that the owner or occupier suffered particular
damage over and above that suffered by the general public) or in private
nuisance (for interference with private right), in Boxill v Grant (1978).

Who may sue (potential claimant)?

Only a person who has proprietary interest in the land affected by nuisance will succeed
in a claim. Example an owner, or someone in exclusive possession or occupation of it as
a tenant or under a licence to occupy. In Hunter v Canary Wharf, recently held, if you
have exclusive right of occupation even as a licensee, you can sue.

In Malone v Laskey, P’s claim failed because she had no proprietary interest in the land
herself.

Who may be sued (potential defendants)?

The creator of the nuisance; any person who creates the nuisance can be sued, whether
or not the person is the occupier of the land at the time of the action.
19
Smosher v Carryl (19211 LRBG 45 (Supreme Court, British Guiana).
11
 a) Occupiers; occupiers who adopt and continue to allow nuisance on their land may
also be liable, even if such nuisance were created by the predecessor in title,
trespasser or third party (Denfield v O’Callaghan).

 An occupier can be sued in respect of private nuisance committed by an

independent contractor, but only where the employer’s duty is non-
delegable. Where the nuisance is an inevitable consequence of the work
being undertaken, then the occupier cannot escape liability by passing the
work to an independent contractor.

b) Landlords; a landlord may be liable for nuisance emanating from his land e.g. If the
landlord had knowledge of the nuisance before letting or where the landlord
reserves the right to enter and repair premises.

Tetley v Chitty, council granted permission for a go-Kart on a council owned land.
The council was liable in nuisance for noise.

Defences (3):

1) Prescription

If the nuisance has been continued for 20 years without interruption the
defendant will not be liable if s/he pleads a prescriptive right to the nuisance.

Sturges v Bridgman, the doctor built consulting room next to a confectioner’s

workshop, which had been operating for over 20 years, prior to the doctors
arrival. Held- priscriptive right had not begun since, the use of the land prior to
construction was not preventable. Therefore in order to claim a priscritive right
the claimant must have been in a position to object to the defendants use of the
property.

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 2) Statutory authority- this will be a defence to private nuisance if it can be shown that the
activities complained of by the defendant were authorized expressly or impliedly.

Allen v Gulf Oil, where parliament intended it to be constructed. There was statutory
immunity in respect of any nuisance which was an inevitable result.

3) Coming to the nuisance- NO DEFENCE

Bliss v Hall, where P moved next to a candle making factory, which had been
operating for three years, held that was no defence.

Remedies

1) Injunction; this will only be granted at the discretion of the court (since it is an equitable
remedy), where it is thought fit. Miller v Jackson, an injunction was refused, where a
cricket club was liable for nuisance by the balls being hit to the ground.

2) Damages; in cases of nuisance by encroachment or damage to land, the measure of

damages will be diminution in the value of the land; cost of repair or other remedial
works is also recoverable in Hunter v Canary Wharf.

3) Abatement; this is a remedy of self-help e.g. cutting down overhanging branches which
are nuisance.

Nuisance Approach for exam:

1) Advise and introduction

2) Potential defendants

3) Potential claimant

4) General premise

5) Elements of nuisance
13
 6) Defences

7) Advise and remedy

Reference

Kodilinye, G. (2015). Commonwealth Caribbean Tort Law (5th ed.). Third Avenue, New York:

Routledge.

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