Nuisance

Public v Private
What is a
Nuisance?
Generally speaking, a nuisance concerns any source of
inconvenience or annoyance, but the tort of nuisance has a
more restricted scope and not every inconvenience or
History behind Nuisances
annoyance is actionable.
The word 'nuisance' is actually old
french for 'harms'
There are two types of nuisances; public and private
Public Nuisance
Public nuisance is conduct that interferes with the reasonable comfort
and convenience of the public at large, or, at least, a sufficiently wide
body of citizens. Nevertheless, public nuisance may be actionable as a
tort if P suffers particular damage, that is, damage different in kind
(and not merely in degree) from that suffered by everyone else.

Public nuisance arises basically as a result of interference with any of

four basic categories,

(1) public decency,

(2) public health,
(3) public convenience and
(4) public safety.

As stated earlier, in order for P to succeed in a civil action, she must

establish that she suffered particular damage i.e. damage over and
above the damage suffered by the rest of the public.
Rylands v Fletcher

Liability under Rylands v Fletcher is regarded as a

specific type of nuisance, a form of strict liability, where
the defendant may be liable without having been
negligent.

"... the person who brings onto his land and collects and keeps
there [in the course of a non-natural user of that land)
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."
Facts

In Rylands v Fletcher (1868) LR 3 HL 330, the

defendants employed independent contractors to
construct a reservoir on their land. The contractors
found disused mines when digging but failed to seal
them properly. They filled the reservoir with water. As a
result, water flooded through the mineshafts into the
plaintiff’s mines on the adjoining property. The plaintiff
secured a verdict at Liverpool Assizes. The Court of
Exchequer Chamber held the defendant liable and the
House of Lords affirmed their decision.
 Test in Rylands v Fletcher

It was decided by Blackburn J, who delivered the judgment of the Court of Exchequer Chamber, and the
House of Lords, that to succeed in this tort the claimant must show:

• That the defendant brought something onto his land;

• That the defendant made a “non-natural use” of his land (per Lord Cairns, LC);
• The thing was something likely to do mischief if it escaped;
• The thing did escape and cause damage.
• That the damage was foreseeable
Private Nuisance

The central issue in private nuisance is whether the interference with P's
enjoyment of land was unreasonable in all the circumstances. The focus, therefore,
is not on the quality of D's act so much as on the nature of P's damage and what is
reasonable to be expected between neighbouring occupiers of land.

The lack of care on D's part is not conclusive. As has been said:

"An activity which is carried on with all reasonable precautions may nonetheless
interfere unreasonably with the plaintiffs rights...."

Liability in negligence may be said to be conduct based: liability in nuisance -

injury based. However, it seems that some damage must be foreseeable by the
defendant.
 CAMBRIDGE WATER CO. V. EASTERN COUNTIES LEATHER
(1994) 1 ALL E.R. 53
Facts
D operated a tannery. Part of the tanning process involved the use
of a chemical, PCE. In transferring this chemical from the drums in
which it was contained to the machines there was a regular spillage
over the years. The PCE sank through the earth and eventually
entered P's borehole over one mile away. It could not have been
reasonably foreseen that the spillage would have caused an
environmental hazard. R had to close the borehole and drill
another at a cost of £956.937. The issue was whether D was liable
for this in nuisance.
Held
D was not liable. Per Lord Goff: "[In nuisance] it is still
the law that the fact that D has taken all reasonable care
will not of itself exonerate him from liability; the
relevant control mechanism [is] found within the
principle of reasonable user. But it by no means follows
that the defendant should be held liable for damage of a
type which he could not reasonably foresee ...
foreseeability of harm is indeed a prerequisite of the
recovery of damages in private nuisance."
EXAMPLES OF PRIVATE
NUISANCE
Some examples of things to be included in actions for private nuisances are:

(1) Encroachment ( for example, by tree roots or overhanging branches)

(2) Physical damage to P's land or property thereon by flooding, vibration or noxious fumes, Etc.

(3) Interference with P's comfort and convenience through the creation of smells, dirt, or noise, immorality and even persistent
telephone calls

But not the ordinary use of their premises by one's neighbours - Southwark LBC v. Mills et.al. [1999] 4 All E.R. 449.

(4) Interference with an easement such as a right of way.

PHYSICAL
DAMAGE PLEASE NOTE!!!

VS Determination of liability in nuisance appears to

PERSONA
be based on the nature of the damage. A
distinction is drawn between:

L (a) physical damage to property and

(b) mere personal discomfort.

DISCOMF
ORT
 PHYSICAL DAMAGE
ST. HELEN'S SMELTING CO. LTD V.
TIPPING (1865) 11 E.R. 1483 H.L
Facts
Tipping owned property near S. Helen's Smelting Works. Noxious gases and vapours from the works caused damage to Tipping's hedges
and trees and interfered with his use of the land.

Held
St. Helen's were liable in nuisance. Per Lord Westbury L.C.: "With regard to ... personal inconvenience and interference with one's
enjoyment, one's quiet, one's personal freedom, anything that discomposes or injuriously affects the senses [or] the nerves, whether that
may or may not be denominated a nuisance, must undoubtedly depend greatly on the circumstances of the place where the thing
complained of actually occurs .... But when the result is a material injury to property... the submission which is required from persons
living in society to that amount of discomfort which may be necessary for the legitimate and free exercise of the trade of their
neighbours, would not apply to circumstances the immediate result of which is sensible injury to the value of the property."
 PERSONAL
DISCOMFORT
HUNTER V. CANARY WHARF LTD., [1997] 2 W.L.R. 684
(H.L)
Facts

P claimed damages in nuisance from D for interference with the reception of television broadcasts alleged to be
caused by the presence of a tower built by P in an enterprise zone. The tower was about 250 meters high and
over 50 meters across. D contended that: (i) interference with television reception as not capable of
constituting an actionable private nuisance. (ii) that they were entitled to rely on a defence of statutory
authority, and (iii) that in order to sue in private nuisance the plaintiffs had to establish a proprietary or
possessory interest in the land affected in order to have locus standi.
 PERSONAL
DISCOMFORT
HUNTER V. CANARY WHARF LTD., [1997] 2 W.L.R. 684
(H.L)
Held
Interference with television reception by the erection of a tall building was not capable of constituting an
actionable public or private nuisance since ... the erection of a building in the line of sight between a television
transmitter and other properties was not actionable as an interference with the use and enjoyment of land ...
"[A]n owner was entitled to build on his land as he wished ... and was not generally liable, in the absence of an
easement or agreement, if his building interfered with his neighbour's enjoyment of their land, and that,
accordingly, since the interference with the plaintiffs reception signals was the result simply of the presence of
the building on the defendant's land no action in private nuisance lay in respect of such interference."
 Understand that
personal discomfort
does not equate to a
nuisance. There must
be some damage done
NUISANCE
THE REASONABLE
USER
The issue essentially depends on whether conduct is to be deemed unreasonable in relation
to the harm suffered. Private nuisance being a consequence-based tort, liability is not based
on whether the defendant acted reasonably or whether they did all they could to prevent
the nuisance occurring. Put differently, taking reasonable care does not prevent liability.
The court has to consider a range of factors.
FACTORS THE
COURT
CONSIDERS
Locality
Plaintiff's Abnormal Sensitivity
Duration of Interference
Public Benefit or Utility of the Defendant's Conduct
Malice
LIABILITY
FOR ANIMALS
Understanding the Law
WHAT WE WILL
COVER
(a) liability for cattle trespass;
(b) liability for dangerous animals (the ‘scienter action’);
(c) liability for dogs;
LIABILITY FOR
CATTLE TRESPASS
One of the most ancient causes of action known to the common law lies where cattle in the possession or
control of the defendant are either intentionally driven onto the plaintiff’s land or stray onto such land
independently. The essence of the tort has been expressed in the following manner in the case Cox v
Burbidge (1863) 143 ER 171:

"If I am the owner of an animal in which, by law, the right of property can exist, I am bound to take care
that it does not stray onto the land of my neighbour; and I am liable for any trespass it may commit, and
for the ordinary consequences of that trespass; whether or not the escape of the animal is due to my
negligence is altogether immaterial."
 PLEASE NOTE!!

At common law, there is no liability in cattle

trespass where animals lawfully on the highway,
without negligence on the part of the person
bringing them there, stray onto the plaintiff ’s
land and do damage.

The rationale behind the rule is that the owner

of land abutting a public road is deemed to have
consented to run the risk of the dangers incident
 PLEASE NOTE!!

Section 13 of the Trespass Act of Jamaica has a

few exceptions to this rule, however:

• The immunity does not apply where the

plaintiff has fenced his land to keep out
livestock
• The defendant has the responsibility to show
the Court that he was driving his cattle
lawfully along the highway
LIABILITY FOR DANGEROUS
ANIMALS (SCIENTER)
Common LAw
Animals Ferae Naturae Mansuetae Naturae

Strict Liability for Owner No Strict Liability for

Owner

Lions, Bears, Elephants, Horses, Donkeys, Cows,

Crocodiles Sheep, Goats, Cats, Dogs
 Establishing Liability for
Dangero
Animals
• Establish the type of animal (Wild or Domestic)

• Demonstrate a link between the animal's vicious propensity and the damage caused

• Show that the animal had the tendency to do the harm specified

• Demonstrate that the defendant or his agents had knowledge of the animal's vicious propensity

• Don't Focus on where the attack took place. It is immaterial

• If the animal is domesticated (mansuete naturae) you must show that the propensity of the animal
leaned towards viciousness or hostility
 PLEASE NOTE!!

If the animal was displaying what could be

deemed to be natural behaviour as opposed to
mischievous or violent behaviour, a 'Scienter'
action will not succeed.
 MCINTOSH V MCINTOSH (1963) 5 WIR 398,
COURT OF APPEAL, JAMAICA
Facts: The plaintiff was riding his jenny along a bridle track when the defendant’s
jackass jumped onto it in an attempt to serve it, causing injuries to both the plaintiff
and the jenny. There was evidence that on a previous occasion the jackass had
attempted to serve the jenny while it was in a lying position and had kicked it, and
that the defendant knew about this

Held: the defendant was not liable, since the jackass, in attempting to serve the jenny,
was merely displaying a natural propensity.

Lewis JA said:
"The learned trial judge gave judgment for the defendant on the grounds that, first of
all, the donkey was a domesticated animal, and secondly, that for a jack to try to
serve a jenny was the mere exercise of a natural propensity; and that, even if this
were held to be a mischievous propensity, there was no evidence that the jack was
 LIABILITY FOR DOGS
Unlike the previous heads which were largely based on Common Law, liability surrounding dogs in the Caribbean and
Jamaica has been covered through statutory measures.

In Jamaica, the prevailing legislation used to be the Dogs (Liability for Injuries) Act which provided strict liability for
harm caused by dogs.

Section 2 of the Legislation stated the following:

"The owner of every dog shall be liable in damages for injury done to any person, or
any cattle or sheep by his dog, and it shall not be necessary for the party seeking such damages to show a previous
mischievous propensity in such dog, or the owner’s knowledge of such previous propensity, or that the injury was
attributable to neglect on the part of such owner."
 LIABILITY FOR DOGS
However, in Jamaica, due to the spate of dog attacks, Jamaica passed An Act entitled The Dogs (Liability For Attacks)
Act, 2020 which repealed the previous Act

Section 5(1) states the following:

The owner of a dog shall be liable in damages for injury

done by the dog in any place, other than the premises (or part thereof)
referred to in section 3 where the dog is kept, or permitted to live or
remain, and it shall not be necessary for the party seeking compensation
in damages to show—

(a) a previous mischievous propensity in the dog;

(b) the owner’s knowledge of a previous mischievous propensity
in the dog; or
(c) that the injury was attributable to neglect on the part of the
owner.
 BROWN V HENRY (1947) 5 JLR 62, COURT OF
APPEAL, JAMAICA

Facts: The plaintiff, a 12-year-old boy, brought an action to recover damages for
injuries received as a result of an attack upon him by the defendant’s dog. There was
evidence that the dog had been set upon the plaintiff by two small boys as they were
walking down a public road

Held: strict liability was imposed by the Dog (Liability for Injuries) Law. The
defence of 'act of a stranger' was available only where the owner of the dog had done
everything he could have done to prevent third parties from meddling with it, which
was not the case here.
 SALMON V STEWART (1950) 5 JLR 236, COURT
OF APPEAL, JAMAICA
Facts: The plaintiff was riding his bicycle along a public street when the defendant’s
dog, which was sitting on a wall beside the road, jumped on the plaintiff ’s knee and
caused him to fall off his bicycle and fracture his foot. It was not known whether the
dog intended to attack the plaintiff or whether it was acting in frolic.

Held: the defendant was strictly liable under the Liability for Injuries by Dogs Law.

Carberry J:"

The section [2] does not merely relieve the plaintiff from the proof of scienter, that
is, the knowledge of the defendant of the mischievous propensity of his dog, but the
section goes on to relieve the plaintiff from proving negligence by the defendant, so
that in, In this case, the injured plaintiff need only prove that the defendant’s dog
caused him injury and liability attaches to the defendant
VICARIOUS
LIABILITY
Understanding why
blame can be
multifaceted
WHAT WE 1 Definition of Vicarious Liability

WILL
CONSIDER 2 Relationship of Control

3 Presence of a Tortious Act

4 Act in the Course of Employment

WHAT IS
VICARIOUS
LIABILITY?
Broom v Morgan [1953] 1 All ER 849

"The expression “vicarious liability” or, perhaps, more accurately, vicarious act, is, in
my opinion, apt to cover all cases whether the act is in the master's sphere or not—that
is to say, whether he is liable directly or liable merely through the servant, he is liable
vicariously for the negligent act of the servant done in the course of his employment."
ELEMENTS OF
VICARIOUS LIABILITY

In the Course
Relationship of
Tortious Act of employment
Control
RELATIONSHIP OF
CONTROL?

Employer/Employee| Principal/Agent| Vehicle

Owners/Appointed drivers

It is important to understand that not all circumstances involving vicarious liability

will be as simple as an employer/employee relationship. Sometimes it may be an
independent contractor and a contracting party or other relationships. In light of this,
the courts have coined a test called the 'Control Test'.
RELATIONSHIP OF
CONTROL?

What is the Control Test?

The Control Test asks the question, "Who is in control of the individual's work?" If the
activities in question are controlled, then the controller can be held vicariously liable.
TORTIOUS ACT?

Negligence/Recklessness/Criminal act

Having established the presence of control, you need to then show that there is some
tort present such as negligence or recklessness. lister
IN THE COURSE OF
EMPLOYMENT

Frolic of His Own/Authorised Activity

For vicarious liability to be possible, the tortious act must occur in the course of
employment. If the relevant relationship is not employer-employee, then the same
principle applies but in a modified form - so an agent must be acting as an agent
before vicarious liability can be attributed to their principal, and a business partner
must be acting in their business capacity before their counterpart can be held jointly
responsible for their actions.
IN THE COURSE OF
EMPLOYMENT
Frolic of His Own/Authorised Activity
A master will not be vicariously liable for his servant’s tort unless the plaintiff shows that
the servant committed the tort during the course of his employment. A tort comes within
the course of the servant’s employment if:

(a) it is expressly or impliedly authorised by his master; or

(b) it is an unauthorised manner of doing something authorised by his master; or
(c) it is necessarily incidental to something which the servant is employed to do.
Occupiers'
Liability
Understanding the Duty of Care Owed by all
Occupiers to Their Visitors
Table of
Contents
• Definition of Occupiers' Liability

• Statutory Foundation

• Key Terms

• Defences

• Exclusion of Liability

• Limitation of Warnings

• Common Law Liability

• Liability to Trespassers
Defining Occupiers' Liability (Statutory Foundation)
"An occupier of premises owes a common duty of care to all his visitors to
ensure that they are reasonably safe in using the premises to which they were
invited or permitted to enter. The exception to this is where the occupier
extends, restricts, modifies or excludes his duty to any visitor by agreement or
otherwise."

- Extracted From the Occupiers' Liability Act of JA; SS3(1)&(2)

Key Terms
An Occupier in relation to
premises or any public place,
means a person who under
the Occupiers’ Liability Act
has a duty of care to visitors
of the premises or public
place, and includes a tenant;
Visitors are those persons who
would, at common law, have
Premises means land been treated as invitees or
or buildings, licensees. Thus, in effect, any
regardless of use person who enters lawfully,
that is, not as a trespasser, will
be a visitor for the purposes of
the statutes.
The Common Duty of care speaks to a
duty to take such
care as in all the circumstances of the
case is reasonable to see that the visitor
will
be reasonably safe in using the premises
for the purposes for which he is invited
or permitted by the occupier to be there
 Defences
The defences of 'volenti non fit injuria' and
'contributory negligence' are available to an
occupier
 Exclusion
of Liability
The occupier may restrict or exclude altogether his
duty of care ‘by agreement or otherwise’ with the
visitor. Thus, the occupier may escape liability by, for
example, posting a notice at the entrance to the
premises to the effect that every person enters at his
own risk and should have no claim against the occupier
for any damage or injury, howsoever caused
 Limitation of
Warnings
Merely giving a warning of a danger to a visitor will
not absolve the occupier from liability unless in the
circumstances the warning was sufficient to enable the
visitor to be reasonably safe in using the premises.
 Common Law
Liability
At common law, the occupier of premises owes an
invitee a duty to exercise reasonable care to prevent
damage to the invitee from an unusual danger known to
the occupier or of which the occupier ought to have
known. An ‘invitee’ was defined in the leading case of
Indermaur v Dames as a person who enters premises
‘upon business which concerns the occupier, and upon
his invitation, express or implied’, the most common
case being that of a customer in a shop.
 Common Law
Liability
Concerning licensees, the law takes the view that he
must take the premises as he finds them because the
occupier only has a duty to warn about the unusual
dangers present on the premises.
Liability to
Trespassers
The liability of an occupier to trespassers on his land falls outside the OLAs and remains governed
by common law principles. Until 1972, the rule was that an occupier owed no duty to trespassers
other than a duty to refrain from deliberately or recklessly causing harm to them.

This rule was felt to be unduly harsh to trespassers, particularly ‘innocent’ ones, such as playful
children or wandering adults, and was altered in 1972 by the leading case of British Rlys Board v
Herrington. There, it was laid down that whereas an occupier does not owe a duty of care to
trespassers, he does owe a duty of ‘common humanity’, or a duty to act ‘in accordance with
common standards of civilised behaviour’.
Common Humanity
Defined
"…if the presence of the trespasser is known to or reasonably to be anticipated by the occupier,
then the occupier has a duty to the trespasser, but it is a lower and less onerous duty than the one
which the occupier owes to a lawful visitor… It is normally sufficient for the occupier to make
reasonable endeavours to keep out or chase off the potential or actual intruder who is likely to be
or who is in a dangerous situation. The erection and maintenance of suitable notice boards or
fencing, or both, or the giving of suitable oral warnings, or a practice of chasing away trespassing
children, will usually constitute reasonable endeavours for this purpose… If the trespasser, in spite
of the occupier’s reasonable endeavours to deter him, insists on trespassing or continuing his
trespass, he must take the condition of the land and the operations on the land as he finds them, and
cannot normally hold the occupier of the land or anyone but himself responsible for injuries
resulting from the trespass, which is his own wrongdoing."

Lord Pearson in British Rlys Board v Herrington