UOL (SEPTEMBER 2021) – TORT LAW REVISION

NUISANCE & RULE IN RYLANDS V FLETCHER – PART 1

Quick Summary:
Problem Questions:

1. Differentiate correctly between public nuisance, private nuisance and Rylands v Fletcher type of claims - whether the scenario
involves public nuisance, private nuisance or the rule in Rylands v Fletcher
2. Divide discussion based on different types of action and parties
3. Identify legal issues in the given scenario
4. Cite and apply relevant case law to each legal issue correctly and thoroughly
5. Advise accordingly on the prospects of each claim

i) Where the facts in question give rise to public nuisance:

a) briefly define public nuisance
b) discuss whether the nuisance is “public in nature”; AND
c) discuss whether the Cl. has suffered a kind of ‘special damage’ that may be claimed

ii) where the facts in question give rise to private nuisance:

a) briefly define private nuisance
b) discuss whether Cl. has the necessary legal/proprietary interest to sue and alternative actions where there is no proprietary
interest in land;
c) discuss whether D is the creator, occupier of land from which nuisance proceeds, or landlord of property from which nuisance
proceeds – whether D may be liable for nuisance
d) discuss whether there is unreasonable interference to Cl.’s use and enjoyment of property (discuss relevant factors)
e) discuss whether the type of loss/damage suffered is recoverable under private nuisance - only property damage, loss of
enjoyment and loss of amenity of land are recoverable – and identify that personal injuries may be recovered under HRA 1998,
Article 8 ECHR violation (provided D is a public body), or negligence
f) discuss whether defences may defeat claims: statutory authority or 20-year prescription, but planning permission and coming
to nuisance are not valid defences
g) discuss the appropriate remedy – injunction or damages, on the facts and whether conditions for each type of remedy are met

iii) where the facts in question give rise to the rule in Rylands v Fletcher:
a) briefly define situations that fall under the rule – isolated escapes from land
b) discuss whether the Cl. has the necessary legal/proprietary interest to sue
c) discuss whether the conditions for liability are satisfied: accumulation on land, dangerous substance, escape causing damage,
non-natural use of land and whether damage arising from escape is reasonably foreseeable
d) discuss whether any defences may defeat claim
e) discuss whether the type of damage sustained is recoverable under the rule
f) discuss the appropriate remedy on the facts

Essay Questions:

Identify whether the question is on private nuisance, rule in R v F or a combination of both:

a) Private nuisance questions may test on:

ü ‘Unreasonable interference’ requirement – how courts apply the factors
ü The ‘proprietary interest’ requirement
ü Suing those who did not create nuisance (occupiers and landlords)
ü Whether private nuisance is a strict liability tort or otherwise
ü The law as a whole – whether it is effective (different aspects of the tort may be discussed)
ü Private nuisance compared with negligence
ü
b) Rule in R v F questions may test on:
ü The application of the rule – scope, effect, conditions for liability
ü The utility of the rule – whether it should be retained or abolished
ü Whether liability is strict or fault-based

c) Both private nuisance and rule in R v F in one question:

ü Whether the two are the same or distinctly different

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PROBLEM QUESTIONS

2021 (A) Q5
Sylvia runs a small market garden business from her home in the village of Merryfield, where she keeps
poultry and grows a range of vegetables, selling her produce at farmers’ markets in the area. Angus lives
in the cottage next door to Sylvia and is frequently awakened early in the morning by the noise from her
cockerel crowing. In March each year, Sylvia receives a large order of manure, causing a horrible smell
to envelop the neighbourhood for several days. This year Angus has his brother Bill staying with him.
Bill suffers from an auto-immune disorder which is significantly worsened by the smell, necessitating a
brief stay in hospital. When Angus complains to Sylvia, she is so angry that she deposits a heap of manure
at the edge of her garden, almost next to Angus’s driveway. Overnight, the wind blows some of this
noxious substance onto his driveway making it impassable. Advise the parties.

Answer Guide:

The circumstances in question give rise to claims that may be brought under either the tort of private
nuisance, public nuisance and/or the rule in Rylands v Fletcher (‘R v F’). Firstly, Bill will bring an action
against Sylvia for the horrible smell that worsened his auto-immune disorder and the brief stay in the hospital.
The claim may be brought under private nuisance and/or public nuisance. Secondly, Angus too will bring an
action against Sylvia for the noise caused by her cockerel, horrible smell from the manure and heap of manure
blocking his driveway. His actions may be brought under private nuisance and/or the rule in R v F.

With regards to Bill’s action under private nuisance, it is noted that private nuisance is the unlawful or
unreasonable interference to one’s use and enjoyment of his property, caused by another’s use of his property
(Hunter v Canary Wharf (1997)). It is a land-related tort that is directed at protecting a person’s enjoyment of
rights over his private property: Professor Newark. The tort encompasses indirect interferences that only
accommodate losses in the form of property damage or of enjoyment and amenity value of property: Hunter.

Thus, in order to sue, the claimant must first demonstrate proprietary or legal interest in land (Malone
v Laskey (1909). In Hunter, it was held that such proprietary/ legal interests include that of owners, tenants and
spouses with rights pursuant to the Matrimonial Homes Act 1983 and Family Law Act 1996. However, this
does not include those with occupation of a property as their home, those with some substantial link with land
or mere licencees: Malone, Khorasandjian v Bush (1993) overruled in Hunter. Bill lives with his brother
Angus and is comparable to the claimant in Khorasandjian who was living with her parents. It is unlikely that
rent or consideration is given in order to live with his brother, suggesting an absence of any legal interest in the
property. Bill possesses at most, a substantial link with land, which is inadequate to bring a claim in private
nuisance. Alternatively, if it can be shown that the smell causing a worsening of his auto-immune disorder
violates his Article 8 ECHR right of freedom from interference to private family life, then an action may
alternatively be brought for damages pursuant to S8 Human Rights Act 1998. It was recognized in McKenna
v British Aluminium (2002) and affirmed in Dobson v Thames Water Utilities (2009) that claimants who lack
proprietary interest to sue under private nuisance, may recover damages pursuant to HRA 1998 provided a
violation of Article 8 ECHR is established, subject to such remedy being the only one available to applicants
in their circumstances. However, applying S6 HRA 1998, any action for violation of Article 8 ECHR may
only proceed against a public body respondent and not a private individual such as Sylvia. In the circumstances,
the action under HRA 1998 is without prospects in Bill’s case.

Another issue with Bill’s claim is the fact that the type of loss or damage suffered is not one which is
protected by the tort of private nuisance. Hunter states that claims may only be made for property damage, loss

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of peaceful and quiet enjoyment of property or amenity value of the property or encroachment on property
(Lord Lloyd). Lord Hoffman clarified that ‘sensible personal discomfort’ is only actionable if the neighbour’s
use of his property diminishes or reduces the claimant’s utility and enjoyment of his land, and not merely when
the interference causes discomfort to him as a person. The worsening of an auto-immune disorder is form of
personal injury. It is not linked to any rights obtained from possession of land, and will fall outside the ambit of
private nuisance law: Lord Hope & Lord Hoffman, Hunter.

Alternatively, Bill is advised to try and make a case for special damage arising from public nuisance.
Public nuisance is committed when the defendant, through an act or omission, causes annoyance to all the
Crown’s subjects (Blackstone), or endangers the life, health, property or comfort of the public, or obstructs the
public in the exercise or enjoyment of rights common to all Her Majesty’s subjects (Archbold). Because it is
an offence against the public as a whole, it is actionable under criminal law. However, where the claimant has
suffered “particular injury beyond that which is suffered by the rest of the public” (Benjamin v Storr (1874)),
damages may be awarded through tort proceedings under common law. The defendant’s actions must have
“materially affected the reasonable comfort and convenience of a class of Her Majesty’s subjects”: AG v PYA
Quarries (1957). It must first be shown that a sufficient number of people fall within the “sphere of the
nuisance”, to constitute “a neigbourhood” or “a class of the public” (Romer LJ, PYA Quarries). Nuisance
will be considered public in nature if its effect is so indiscriminate and the range of nuisance is so widespread
that it would be impracticable and unreasonable for each affected member of the community to bring action
against the nuisance: Lord Denning, PYA Quarries. Here, the horrible smell has enveloped the
“neighbourhood”. This may be sufficient to amount to public nuisance. It is also likely that the court will find
the horrible smell to be an unreasonable interference given that Merryfield is a village rather than a farm and
no planning permission has been given to alter the character of the neighbourhood (contrast with Gillingham
BC v Medway Dock (1993). Lastly, it has to be shown that Bill has suffered further/additional and particular
loss, damage or injury due to the disturbance, above and beyond the disturbance itself (Benjamin). In Re: Corby
Group Litigation (2009), personal injuries (children being born with deformities) occasioned by public nuisance
were recoverable as special damage. Applying this by analogy, Billy should be able to recover damages here.

Moving on to Angus’ claim, Angus will first try to establish that the noise, smell and obstruction on his
driveway amount to private nuisance. The law on private nuisance laid down above for Bill applies here as well.
Angus will be able to meet the first requirement of legal interest to sue, since the affected property is his, with
the facts stating that it was “his driveway”. Next, the horrible smell from the manure clearly causes loss of
enjoyment of property and is substantial in nature (Hunter). In Wheeler v JJ Saunders (1995) and Barr v Biffa
Waste Services (2012) it was held that nuisance in the form of unbearable odour was a substantial interference
with the claimant’s enjoyment of his property. The smell nuisance is thus actionable. With regards to Angus
being frequently awakened early in the morning due to the cockerel crowing, it is debatable whether this will
amount to “substantial and not fanciful interference,” Hunter. The situation is arguably in contrast with the
kind of loud noises found to interfere with quiet enjoyment of property seen in Coventry v Lawrence (2014)
(loud noises from motor racing stadium) or Christie v Davey (1893) (loud banging of pots and pans). It is
doubted that the noise from the cockerel crowing is substantial or actionable on the facts. Angus may be
expected to put up with the same (Baxter v Camden LBC (2001)). As for the manure obstructing his driveway,
the driveway is now impassable and unusable. The amenity value of the driveway has clearly been diminished,
amounting to loss of amenity value. This is actionable under private nuisance.

Next, Angus must show that the interference was unreasonable. Not every use by the defendant of his
land will attract liability, and Angus must show that Sylvia’s use of her land was not ordinary amidst their
particular society: Sedleigh-Denfield v O’Callaghan (1940). Barr states that there is no general rule in the law
establishing a particular standard or threshold for nuisance but that the degree and seriousness of the interference

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are relevant. The test is simply whether an ordinary person can reasonably be expected to put up with the
nuisance, in the circumstances. This is to be determined according to “average standards of living, and not
elegant or dainty modes of living.” (Walter v Selfe (1851), affirmed in Barr.) Further, the interference has to be
substantial in terms of causing a material inconvenience and not mere discomfort by fanciful standards: Hunter,
affirmed in Barr. The question thus, becomes, whether an ordinary person in the circumstances, could
reasonably be expected to put up with the manure smell, noise from the cockerel and obstruction to their
driveway; and this is to be answered by reference to a number of relevant factors. It is submitted that only the
interference caused by the manure will be found unreasonable and not the sound of the cockerel crowing.

Firstly, looking at the locality, Merryfield is a village presumably for residential purposes and not
farming. The facts also do not indicate that the locality is of a hybrid kind, in which two different uses of land
“coexist”: Coventry distinguished. There is no grant of planning permission to imply that the residents of
Merryfield must now accept farming as an ordinary or common activity in Merryfield. Thus, applying Wheeler
and Sturges v Bridgman (1879), the prevailing and predominant character of Merryfield as a residential village
would render the smell and obstruction to the driveway unreasonable, but not the cockerel crowing. Secondly,
from the standpoint of the duration of the interference, Sylvia receives the pile of manure in March each year
and the facts that the smell surrounds the neighbourhood for a several days. Thus, the interference from the
manure is not constant, daily or throughout the year, but annual and for several days a year. This may not be
substantial. But in Barr, it was held that even a short duration of interfence may be found unreasonable if it is
unreasonable in degree. It is submitted that given that the smells are horrible, the interference will be considered
unreasonable. Adding to this, the obstruction to the driveway is the result of Sylvia deliberately depositing a
huge pile of manure so close to Angus’ property that it could be blown over so as to block his driveway. This
was an angered response to his request indicating malice on her part, which, applying Hollywood Silver Fox
Farms v Emmett (1936) and Christie, will amount to unreasonable interference. It is submitted thus, that Angus
will be able to establish that the interference from the manure is unreasonable.

Sylvia may not be able to rely on any of the defences as there is nothing on the facts to indicate statutory
authority to commit nuisance or a right of prescription. She may raise the fact that her produce is sold at the
farmers market, which implies that her activity is of great public benefit/ utility and thus, that this should serve
as a defence against Angus’ action. However, in Barr, the court rejected public benefit as a defence to an action
for nuisance, reaffirming that the private individual’s common law right to enjoyment of property must be
upheld and cannot be left to compete against public interests. Indeed, if at all, the court may only be moved to
refuse the remedy of an injunction and grant damages in lieu of an injunction instead, where the defendant’s
activity is of high public utility/benefit: Coventry, Miller v Jackson (1977). However, distinguishing from
Miller and applying Barr instead, the court is likely to grant an injunction given the severity of the smell. Indeed,
upon proving that the interference is unreasonable, Angus is prima facie entitled to an injunction: Coventry.

Alternatively, the manure deposit causing driveway obstruction may also be considered under R v F
principles. The rule in R v F applies typically to isolated escapes from land, of ultra-hazardous substances
accumulated by the defendant on his land, causing damage to the claimant’s property: Transco Plc v Stockport
MBC (2003). Angus will argue that Sylvia did accumulate harmful substances on her land for her own purposes,
in the form of the manure deposit (Rylands). The facts describe the manure as a noxious substance and thus, it
will be considered a dangerous substance capable of causing mischief upon its escape: Rylands, Cambridge
Water v Eastern Counties Leather Plc (1994). Further, the manure deposits did escape from her land making
their way onto his property, Read v Lyons (1947). The accumulation of the manure can also be said to be likely
to cause foreseeable harm and thus, may be actionable: Cambridge Water. However, two potential difficulties
arise as hurdles to liability; firstly, from the fact that the use of the manure may not be regarded a ‘non-natural’
use and secondly that there is no apparent property damage arising from the escape. In order to attract liability

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under the rule, Transco makes clear that property damage must have been occasioned. Here, though, the manure
blown over by the wind only made the driveway impassable and not damaged. Further, Transco states that only
extraordinary and unusual uses of land that bring with them increased risks of danger are actionable under the
rule. It is doubted that this may be shown on the facts. The extent of damage and gravity of danger seem
inadequate for liability. Sylvia’s accumulation of the manure is also for a small market garden business which
is incapable of being construed as large-scale or ‘ultra-hazardous’ use of land. It is noted that even if liability
arises and Sylvia attempts to raise the defence of act of God, this will not be accepted as the escape could have
been avoided and would not have occurred had she not deposited the manure so close to Angus’ driveway:
Nichols v Marsland (1876) distinguished, Greenock v Corp. v Caledonian Rly. (1917) applied. In any event,
liability will not arise under the rule in R v F because it is doubted that all the criteria for liability will be
established on the facts.

In summary, Bill may successfully recover compensation for his personal injury and consequential
losses through a claim for damages founded on public nuisance. Angus, on the other will not be able to rely on
R v F principles but on private nuisance principles instead, to obtain an injunction preventing interference to
his enjoyment and use of his driveway caused by Sylvia’s use of the manure. No injunction is likely to be
granted with regards to noise caused by the cockerel crowing given that this will not satisfy the criteria for
liability under private nuisance.

2021 (B) Q5
Superior Inns is in the process of constructing a four-story hotel, for which it has planning permission,
in the centre of the small town of Thameside. Relations between Superior Inns and the local population
have not been good. Lorries are rumbling through the town to the building site from 6am to midnight,
seven days a week. Betty has recently purchased a house which borders the rear of the site and finds that
the noise of the building works makes it difficult for her to sleep. She believes that an influx of rats into
her garden has been caused by Superior’s digging and disruption. The rats are devouring the vegetables
she is trying to grow. Leonard, who lives nearby, cannot record his podcast from home, because the
background noise is too loud. Now, he is distressed to discover that the passing lorries have deposited
soot on the front of his house, and the paint on the house is peeling. Advise the parties.

Answer Guide:

1. Betty v Superior Inns:

i) Action brought under private nuisance for the inability to sleep, influx of rats in her garden and
damage to vegetables

ii) She has the necessary legal interest to sue – “purchased a house” (Hunter, Malone)

iii) All her losses are actionable – inability to sleep and disturbance in the form of rats (pests) will
constitute loss of enjoyment: Coventry v Lawrence (noise nuisance) and Network Rail
Infrastructure v Williams (drawing analogy to knotweed creeping into property, causing
disturbance). Damage to vegetables amounts to property damage: McKinnon v Walker.

iv) Whether the interference is unreasonable: no threshold, but question of degree/seriousness,

whether an ordinary person can reasonably be expected to put up with the interference –
according to average, plain and sober standards of living, not fanciful, dainty or elegant standards
– there must be a material and substantial interference/ inconvenience caused: Barr v Biffa

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 affirming Walter v Selfe. No precise formula, but based on ordinary uses by mankind living in a
particular society: Sedleigh-Denfield v O’Callaghan. Duration wise, although interference does
not go on throughout the night, the fact that it goes on continuously from 6am to midnight,
indicates that it goes on for very long hours, and some people go to bed as early as 8 or 9pm.
Comparing with De Keysers Royal Hotel v Spicer Bros., interference is unreasonable. Locality
wise, if planning permission had the effect of changing the character of the locality, then the
interference may not be unreasonable: Gillingham v Medway Dock. However, if despite grant of
planning permission, the locality is not changed but becomes like a hybrid locality, Superior Inns
must comply with terms of planning permission, failing which interference will be considered
unreasonable. Likely that unreasonable interference will be established for all issues (noise, rats
and damage to vegetables).

v) Superior Inn will try to rely on planning permission as a defence but this will be rejected:
Gilingham, Coventry. Coming to nuisance is also not a defence: Miller v Jackson, Coventry. No
other defence will apply.

vi) Betty will ask for an injunction. Upon proving unreasonable interference, she is prima facie
entitled to it: Coventry. But the court may choose to grant damages in lieu. She will also ask for
damages for destroyed vegetables. This is reasonably foreseeable and not too remote – will be
recoverable: Cambridge Water.

vii) Alternative discussion: whether the rats from the land on which Superior Inns were digging,
escaping and causing property damage to Betty’s property, can result in liability under the rule
in Rylands v Fletcher. The rule states: where the defendant has accumulated something on his
land for his own purpose, and the thing is capable of causing mischief if it escapes, the defendant
is answerable for all damage caused by the escape if he fails to keep it in. The rule applies only
to ultra-hazardous activities and isolated escapes causing property damage today: Transco Plc v
Stockport MBC. Only foreseeable damage is recoverable: Cambridge Water.

viii) Liability arguably will not arise on the facts, because although there is an (i) escape, (ii) causing
damage, (iii) of something likely to cause mischief upon its escape (rats are dangerous), and (iv)
that this reasonably foreseeable, the construction activity may not be deemed extraordinary and
unusual that it would be considered (v) non-natural use of land. Further, there is no (vi)
accumulation of something dangerous on land by Superior Inns since the rats are highly likely to
have existed there before (Giles v Walker). No liability will arise under the rule.

2. Leonard v Superior Inns:

i) Action brought under private nuisance for inability to record podcasts and peeling paint

ii) He has the necessary legal interest to sue – “his house” (Hunter, v Canary Wharf, Malone v
Laskey)

iii) The inability to record his podcast (presumably a private activity carried out for entertainment
and not work), will not amount to loss of enjoyment or amenity value of property applying
Hunter. The peeling paint cause by deposits of soot in front of his house will be recoverable as
it constitutes property damage: St Helen’s Smelting v Tipping, Hunter. The distress per se is
personal in nature and not recoverable: Hunter.

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 iv) Whether he will be able to establish unreasonable interference: Barr, Sedleigh-Denfield –
applying the factor of locality, if planning permission has altered the character of the locality,
applying Gillingham BC v Medway Dock, interference is no longer unreasonable. Coventry also
applies, as discussed above for Betty. The duration factor will also point towards
unreasonableness – ongoing interference – construction takes a long time and continues for long
hours: De Keysers Royal Hotel v Spicer Bros. As discussed above, the inability to record podcasts
will be considered abnormal sensitivity if the noise levels do not affect other activities and uses
of land: Network Rail Infrastructure v Morris, Robinson v Kilvert. As for the peeling paint,
because this amounts to property damage, this will render the interference automatically
unreasonable, even if locality favours Superior Inns: St Helen’s Smelting v Tipping.

v) Leonard will only successfully establish liability for the soot causing peeling paintwork and not
the inability to record his podcasts.

vi) Superior Inns will try to argue that planning permission serves as a defence but this has been
rejected in Coventry v Lawrence, Gillingham BC. No other defences will apply on the facts – no
evidence of 20-year right of prescription or statutory authority. Public benefit is not a defence:
Barr.

vii) Leonard will ask for damages for the peeling paint. He needs to prove that the damage is not too
remote: Cambridge Water. This should be established since such damage is reasonably
foreseeable. He may also seek an injunction, which he is prima facie entitled to upon proving
unreasonable interference: Coventry. However, the court also has the discretion to grant damages
in lieu: Coventry.

3. Alternative discussion: whether Betty and Leonard can claim damages for property damage arising due
to public nuisance. It may be considered whether the construction amounts to public nuisance and
further whether their losses constitute special damage: AG v PYA Quarries, Gillingham BC v Medway
Dock, Halsey v Esso Petroleum

2021 (Resit A) Q5
Karen has recently begun to operate a child’s playgroup, for which she has received planning permission,
from her home in the village of Appleford. Up to 20 children aged two to four years are brought by their
parents at 8am each weekday and they often play in the garden until 5pm. The general noise from Karen’s
home is causing annoyance and inconvenience to the neighbourhood. Several cars parked in the street
outside Karen’s house have been scratched and dented by the parents’ cars. Jeremiah has lived in his
cottage next door to Karen for 25 years, where he now cares for his elderly and infirm mother Rachel.
Rachel is distressed by the comings and goings of the children and claims that their noise is making her
ill. Balls from their games frequently fly over the wall, and one has broken Jeremiah’s window. Karen
refuses to address the problem. Therefore, in retaliation, Jeremiah has positioned his lawn sprinkler so
that the water sprays into Karen’s garden, making it impossible for the children to play outside. Advise
the parties.

Answer Guide:

1. Jeremiah v Karen:

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 i) Action brought under private nuisance for the damage to property (broken windows – balls flying
over). Facts are similar to Miller v Jackson.

ii) He has the necessary legal interest to sue – “his cottage” (Hunter, Malone)

iii) Damage to property is recoverable: Hunter v Canary Wharf, McKinnon v Walker.

iv) Whether the interference is unreasonable: no threshold, but question of degree/seriousness,

whether an ordinary person can reasonably be expected to put up with the interference –
according to average, plain and sober standards of living, not fanciful, dainty or elegant standards
– there must be a material and substantial interference/ inconvenience caused: Barr v Biffa
affirming Walter v Selfe. No precise formula, but based on ordinary uses by mankind living in a
particular society: Sedleigh-Denfield v O’Callaghan. Duration wise, the interference continues
from 8am to 5pm, every week day. This is arguably unreasonable. Locality wise, if planning
permission had the effect of changing the character of the locality, then the interference may not
be unreasonable: Gillingham v Medway Dock. However, if despite grant of planning permission,
the locality is not changed because the activity is confined and small scale, then the character of
the locality remains the same: Wheeler v JJ Saunders. The facts state that Appleford is a village
– presumably residential – a child playgroup in the area does not seem to be unreasonable.
However, where property damage is caused, interference automatically becomes unreasonable:
Crown River Cruises v Kimbolton Fireworks, Miller v Jackson, St Helen’s Smelting v Tipping.
Unreasonable interference will be established with regards to damaged windows.

v) Karen will try to rely on planning permission as a defence but this will be rejected: Gilingham,
Coventry. 20-year prescription is also not a defence – although he has been living next to Karen
for 25 years, the activity only started recently – defence will not apply: Sturges v Bridgman,
Coventry. No other defence will apply.

vi) Jeremiah will ask for an injunction against the child playgroup activity. Upon proving
unreasonable interference, he is prima facie entitled to it: Coventry. But the court may choose to
grant damages in lieu. He will also ask for damages for damaged windows. This is reasonably
foreseeable and not too remote – will be recoverable: Cambridge Water, Miller.

vii) Alternative discussion: whether the balls flying over from Karen’s property, escaping and causing
damage to Jeremiah’s windows, can result in liability under the rule in Rylands v Fletcher. The
rule states: where the defendant has accumulated something on his land for his own purpose, and
the thing is capable of causing mischief if it escapes, the defendant is answerable for all damage
caused by the escape if he fails to keep it in. The rule applies only to ultra-hazardous activities
and isolated escapes causing property damage today: Transco Plc v Stockport MBC. Only
foreseeable damage is recoverable: Cambridge Water.

viii) Liability arguably will not arise on the facts, because although there is a (i) accumulation of
something potentially dangerous on her premises, an (ii) escape, (iii) causing damage, (iv) of
something likely to cause mischief upon its escape (balls flying over), and (v) that this reasonably
foreseeable, the child playgroup may not be deemed extraordinary and unusual that it would be
considered (vi) non-natural use of land. No liability will arise under the rule.

2. Karen v Jeremiah:

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 i) Action brought under private nuisance for positioning of the lawn sprinkler making it
impossible for children to play outside

ii) She has the necessary legal interest to sue – “her home” (Hunter, v Canary Wharf, Malone v
Laskey)

iii) The fact that she can no longer properly operate the child playgroup sessions (playing outside
is a central activity for the playgroup sessions), would amount to loss of amenity value and
enjoyment of property: Hunter. It is substantial and not fanciful. Comparable to Hollywood
Silver Fox Farms v Emmett.

iv) Whether she will be able to establish unreasonable interference: Barr, Sedleigh-Denfield –
applying the malice factor, this will be considered unreasonable interference automatically –
Jeremiah turned his sprinkler out of retaliation – evidence of malice – applying Hollywood
Silver Fox Farms v Emmett and Christie v Davey this will amount to unreasonable
interference. He may not raise abnormal sensitivity against her since it would be a disturbance
to anyone using their garden: Robinson v Kilvert, NRI v Morris distinguished. Unreasonable
interference will be established.

v) Jeremiah may not rely on any defences.

vi) Karen will seek an injunction, which she is prima facie entitled to upon proving unreasonable
interference: Coventry. Jeremiah may be prevented from using his lawn sprinkler in such a way
as to disrupt her activity.

3. Rachel v Karen

i) Rachel will sue Karen under private nuisance for the distress and noise caused by the child
playgroup

ii) Rachel may not establish unreasonable interference because the noise, although from 8am to
5pm, is described as general noise – she may be expected to put up with such ordinary noise in
neighbourhood where there are children – not unreasonable and can ordinarily be expected:
Baxter v Camden LBC.

iii) Rachel also does not have proprietary interest to sue: Hunter. She is living with her son and
does not own the property. She may alternatively try to sue under HRA 1998, for violation of
Article 8 ECHR, McKenna v British Aluminium, Dobson v Thames Water Utilities. But
because Karen is a private individual, the action will not proceed: S6 HRA 1998. And Jeremiah
who is also pursuing an action may claim damages on the mother’s behalf: Dobson.

iv) Rachel’s loss or injury (distress) is personal in nature and not recoverable under private
nuisance: Hunter. Instead, she may consider suing under negligence.

4. Alternative discussion: whether Jeremiah, Rachel and others whose cars have been scratched and dented
may claim damages for property damage or personal injury arising due to public nuisance. It may be
discussed whether the playgroup amounts to public nuisance since the facts state that it is causing

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 annoyance and disturbance to the neighbourhood. It should further be considered whether their losses
constitute special damage: AG v PYA Quarries, Gillingham BC v Medway Dock, Halsey v Esso
Petroleum, Re: Corby Group Litigation.

2021 (Resit B) Q5:

Medicaid International (MI) has long manufactured vaccines in a factory on a small industrial estate.
Recently, production has increased significantly and lorries now come and go from the factory at all times
of the day and night, passing through the neighbouring village of Benson. Many inhabitants of Benson
are having difficulty sleeping due to the noise from the lorries, and Lisa has found that the windows of
her house have cracked due to the vibrations. Her son Archie suffers from asthma, which has worsened
recently due to the exhaust fumes from the lorries. Dinesh runs a cheese-making business near to MI on
the industrial estate. He has found that large quantities of vaccine packaging, stored on the MI property,
have been blowing into the area where he stores ingredients and contaminating them. Advise the parties.

Answer Guide:

1. Lisa v Medicaid International (MI):

i) Action brought under private nuisance for the damage to property (cracked windows because of
vibrations).

ii) She has the necessary legal interest to sue – “her house” (Hunter, Malone)

iii) Damage to property is recoverable: Hunter v Canary Wharf, McKinnon v Walker.

iv) Whether the interference is unreasonable: no threshold, but question of degree/seriousness,

whether an ordinary person can reasonably be expected to put up with the interference –
according to average, plain and sober standards of living, not fanciful, dainty or elegant standards
– there must be a material and substantial interference/ inconvenience caused: Barr v Biffa
affirming Walter v Selfe. No precise formula, but based on ordinary uses by mankind living in a
particular society: Sedleigh-Denfield v O’Callaghan. Duration wise, the interference is
unreasonable and substantial – lorries come and go from the factory at all times, throughout the
day and night. Applying De Keyser’s Royal Hotel v Spicer Bros, this would be unbearable.
Locality wise, even though MI is operating on a small industrial estate, they do pass through
Benson, a village – presumably residential. This would be considered unreasonable: Sturges v
Bridgman. Further, since property damage has been caused, interference will automatically be
deemed unreasonable: Crown River Cruises v Kimbolton Fireworks, Miller v Jackson, St
Helen’s Smelting v Tipping. Unreasonable interference will be established with regards to the
cracked windows.

v) MI may not rely on the 20-year prescription defence – although they have been operating for
long, production has increased only recently and the problem is recent. The defence wil not apply
where 20 years have not passed without objection from the claimant: Sturges v Bridgman,
Coventry. No other defence will apply.

vi) Lisa will seek an injunction to stop the vibrations from lorries coming and going. Upon proving
unreasonable interference, she is prima facie entitled to it: Coventry. But the court may choose

10
 to grant damages in lieu. She will also ask for damages for the cracked windows. This is
reasonably foreseeable and not too remote – will be recoverable: Cambridge Water, Miller.

2. Dinesh v MI:

i) Dinesh will sue MI under the rule in Rylands v Fletcher, for the large quantities of packaging
blown over and contaminating his ingredients. The rule states: where the defendant has
accumulated something on his land for his own purpose, and the thing is capable of causing
mischief if it escapes, the defendant is answerable for all damage caused by the escape if he fails
to keep it in. The rule applies only to ultra-hazardous activities and isolated escapes causing
property damage today: Transco Plc v Stockport MBC. Only foreseeable damage is recoverable:
Cambridge Water.

ii) Liability arguably will not arise on the facts, because although there is a (i) accumulation of
something potentially dangerous on her premises (vaccine packaging), an (ii) escape (the
packaging was blown over), (iii) causing damage (contaminating his ingredients), (iv) of
something likely to cause mischief upon its escape (vaccine packaging), and (v) that this
reasonably foreseeable, the manufacturing of vaccines may not be considered extraordinary or
unusual, or ultra-hazardous. It is likely to be considered a need: Transco. Further, Dinesh is likely
to have insured against damage to his ingredients and cheese-making business. No liability will
arise under the rule.

iii) Alternatively, an action may be brought under private nuisance for the packaging contaminating
his ingredients. It is still an indirect interference causing property damage.

iv) Dinesh has the necessary legal interest to sue – “his business” (Hunter, v Canary Wharf, Malone
v Laskey)

v) The fact that there is property damage means that this is recoverable under private nuisance:
Hunter (also may be compared with Hollywood Silver Fox Farms v Emmett).

vi) Whether he will be able to establish unreasonable interference: Barr, Sedleigh-Denfield – as

discussed above for Lisa, unreasonable interference will be established. MI may not raise
abnormal sensitivity here as the vaccine packaging is likely to cause damage to other ordinary
materials or ingredients stored in the average home: Robinson v Kilvert distinguished.

vii) MI may not rely on any defences as discussed above for Lisa.

viii) Dinesh will seek an injunction, which he is prima facie entitled to upon proving unreasonable
interference: Coventry. He may also ask for damages for the contaminated ingredients, and must
prove that this is reasonably foreseeable.

3. Archie v MI

i) Archie will sue MI under private nuisance for the asthma worsened by the exhaust fumes from
the lorries

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 ii) Archie may establish unreasonable interference (the fumes from the exhaust are likely to be
considered unreasonable and serious): Barr. The duration and locality factors will also favour
Archie.

iii) However, the claim may not proceed under private nuisance because Archie does not have
proprietary interest to sue: Hunter. He is living with his mother and does not own the property.
He may alternatively try to sue under HRA 1998, for violation of Article 8 ECHR, McKenna v
British Aluminium, Dobson v Thames Water Utilities. If it can be shown that MI is a public
body or performing a public function, the action may proceed: S6 HRA 1998. However, damages
for violation of Article 8 ECHR may not be granted separately since Lisa’s action under private
nuisance is likely to succeed and she will be awarded damages: Dobson.

iv) Archie’s loss or injury (asthma) is personal in nature and not recoverable under private nuisance:
Hunter. Instead, he may consider suing under negligence.

4. Alternative discussion: whether Lisa, Dinesh and Archie may claim damages for property damage or
personal injury arising due to public nuisance. It may be discussed whether MI’s manufacturing
amounts to public nuisance since the facts state that many inhabitants of Benson are having difficulty
sleeping. It should further be considered whether their losses constitute special damage: AG v PYA
Quarries, Gillingham BC v Medway Dock, Halsey v Esso Petroleum, Re: Corby Group Litigation.

2020 (A) Q4:

“Bio-Sure” is a factory producing an extensive range of industrial cleaning products. Located in
Easthampton, a small town surrounded by countryside, Bio-Sure is long-established and employs many
local people. Yuri, his wife Tanya and their son Jason live near to the factory and have begun to notice a
terrible smell coming from it in the evenings, accompanied by clouds of smoke. The soot and debris from
the smoke falls on their house, damaging the brickwork. Tanya can no longer hold the open-air yoga
classes in their garden and Jason has developed a persistent cough. Some of their neighbours say that
vibrations from the factory have led to several broken windows. Yuri and Tanya are thinking of moving
but are told that their home is worth a lot less than they paid for it. Advise the parties.

Answer Guide:

1. Yuri, Tanya and Jason v Bio-Sure (private nuisance action). Private nuisance is the appropriate action
where interference is unreasonable and indirect and affects another’s private right of enjoyment of
property: Hunter. Rule in R v F is an off-shoot of private nuisance and deals exclusively with escapes
from land which are the result of ultra-hazardous uses of land. Bio-Sure’s use of their private property
has caused nuisance in the form of terrible smell and clouds of smoke – actionable under private
nuisance; and soot and debris escaping from Bio-Sure and landing on Yuri’s property – actionable under
the rule in R v F. The result is damaged brickwork (property damage), inability to carry out open-air
yoga classes (possibly loss of enjoyment of property) and persistent cough (personal injury). Yuri and
Tanya may have the necessary interest in land to sue (Hunter) for private nuisance. The location and
duration of the interference, and extent suggest that the interference is unreasonable since property
damage has been caused: St Helen’s Smelting, Crown River Cruises v Kimbolton Fireworks. Yuri is
prima facie entitled to the injunction to stop the ongoing nuisance (Coventry) and can recover damages
for damage to brickwork caused by the soot and debris – this is reasonably foreseeable and not too
remote: Wagon Mound. Jason may not be able to recover for the persistent cough under private
nuisance – personal injury is not recoverable (Hunter) and he lacks proprietary interest: Hunter. He

12
 may recover under HRA 1998, Art. 8 ECHR violation: Dobson, McKenna subject to S6, S7 & S8.
Alternatively, negligence. For Tanya’s yoga classes, Bio-Sure will argue that the activity is abnormally
sensitive: Robinson v Kilvert, NRI v Morris. The claim may fail and may not amount to unreasonable
interference – interference may not be substantial but fanciful: Hunter. Tanya may not succeed. The
fact that they are thinking moving out suggests that they do not accept or acquiesce the nuisance. Bio-
Sure will not be able to raise coming to nuisance as a defence (Miller v Jackson) or 20-year prescription:
Coventry, Sturges. Only Yuri will succeed in respect of the property damage, terrible smell, soot, debris
and smoke. Any reduction in property value because of the nuisance is not recoverable if it is purely
economic: NRI v Williams. Since here there is damage to property, the reduction in property value may
not be purely economic. Tanya and Jason will not be able to claim under private nuisance.

2. There is also a possible claim under the rule in Rylands v Fletcher – the soot and debris escaping from
land causing property damage (Yuri v Bio-Sure). There is accumulation and escape from land causing
damage (Read v Lyons), and the substance accumulated is likely to do damage if it escapes (British
Celanese) but the use of land may not be non-natural – not extraordinary or unusual (Transco). The
damage is reasonably foreseeable (Cambridge Water) but the claim will fail ultimately because the use
of land is natural.

3. Broken windows due to the vibrations – those who sustain broken windows may recover special damage
over and above the public nuisance from Bio-Sure’s activity. Nuisance is public in nature – appears to
be extensive enough: AG v PYA Quarries. The property damage is also recoverable: Halsey v Esso
Petroleum.

2020 (B) Q4:

Patricia and Tariq have recently come to live with their friend Gary in his cottage in the rural village of
Appleton. Nearby is “Eggcellent”, a poultry farm which produces eggs for retailers in the area. Recently,
Eggcellent’s operations have significantly increased and Gary and his friends are awoken at all times of
the night by lorries going to and from the farm, an issue which other neighbours are complaining about
as well. An unpleasant smell means that it is impossible to have the cottage windows open. The increased
number of chickens has led to many escaping into Gary’s garden, where they have attacked his valuable
collection of cactuses. Both Patricia and Tariq have developed rashes, which they believe are due to the
fumes coming from the farm. Advise the parties.

Answer Guide:

1. Gary, friends and neighbours may be experiencing public nuisance as a result of Eggcellent’s poultry
farm – disturbance – being awoken by the lorries. To claim in tort, it must be shown that nuisance was
public in nature (AG v PYA Quarries, Gillingham BC v Medway Dock) and special damage was
suffered (Benjamin v Storr, Tate & Lyle, Halsey, Re: Corby Litigation Group). Patricia and Tariq’s
rashes and damage to Gary’s cactus collection may amount to special damage provided they are
substantial.

2. Gary could also sue Eggcellent under private nuisance for the unpleasant smell. He has the necessary
proprietary interest (Hunter). He may be able to show that the interference was unreasonable (Barr).
Smell so unpleasant that it is impossible to open windows. This constitutes serious interference with
enjoyment of property and is recoverable under private nuisance. Locality needs to be considered since
the poultry farm is located in a rural village (Sturges). If unreasonable interference is established, Gary

13
 will be prima facie entitled to an injunction (Coventry), unless it is held that damages in lieu would be
the fairer and more feasible remedy: Miller v Jackson. No defences may be pleaded here.

3. Patricia and Tariq may not claim under private nuisance for the rashes believed to be caused by the
fumes – they do not have proprietary interest in land and the injury sustained in personal in nature and
not a land-related damage or loss: Hunter. They may alternatively claim under negligence.

4. Gary will sue Eggcellent for the chickens that have escaped from their land and caused property damage
to his cactus under the rule in R v F. Accumulation is satisfied (Rylands). There is an escape causing
damage (Read), of something which is likely to do damage if escaped (Rylands, Hale). The use of land
has to be non-natural, i.e. extraordinary and unusual: Transco. This may not be the case on the facts.
The poultry farm does not bring with it increased danger. Damage may not be reasonably foreseeable
(Cambridge Water). The claim may not succeed under R v F.

2020 (Resit A) Q4:

In January, Donald and Claire move into “Shady Acres”, a large house with extensive grounds. Claire
begins to run yoga classes in the conservatory and Donald continues with his hobby of writing poetry. In
May, they are surprised when they begin to experience disruption from next door. They discover that for
25 years their neighbour Ken has run a children’s day camp from May to September. There is a high
level of noise from the children and staff, which affects both Claire’s yoga classes and Donald’s writing.
When they complain to Ken, he moves the volleyball net close to the border of the properties and balls
begin to come over the fence, crushing bushes and flowers in Shady Acres. Evening entertainment,
including amplified music, carries on until after midnight at the weekends. Once a week, the children
build a huge bonfire and Ken also puts on a fireworks display. Dense smoke often blows into their garden
and it is impossible to keep the windows open. Debris from the fireworks fall on the roof of the
conservatory, causing ugly scorch marks. Claire is now having treatment for anxiety. They are thinking
of moving but are told that Shady Acres is worth a lot less than they paid for it. Advise Donald and Claire.

Issues:

Claire and Donald v Ken – action under private nuisance for the high level of noise disrupting yoga and poetry
writing activity:
® They have the necessary interest to sue (Hunter).

® Whether the interference is unreasonable according to ordinary standards of living, looking at

circumstances, and what an ordinary person may be expected to put up with (Barr), Ken will raise
abnormal sensitivity (NRI v Morris, Robinson v Kilvert), while D & C will raise malice (Christie v
Davey). Further, he has caused property damage and the interference is thus more serious (crushed
bushes and flowers). The timing and duration of the interference lean towards unreasonableness: De
Keysers Royal Hotel v Spicer Brothers, Crown River Cruises v Kimbolton Fireworks) – May to
September. Evening entertainment goes on until after midnight and during weekends. The weekly
bonfire causing dense smoke to blow over is unreasonable interference with enjoyment of property with
C & D not being able to open their windows. And the debris from the fireworks is comparable to the
Kimbolton Fireworks case – will be considered unreasonable because property damage has been
caused. Liability will arise. The locality also does not seem appropriate for the activity and
unreasonableness will be established: Barr.

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 ® Ken may not rely on the 20-year prescription defence because D & C have only experienced the
nuisance for a few months and have objected: Sturges v Bridgman, Coventry. Coming to nuisance is
also not a defence: Miller, Coventry. Damages may be awarded for property damage since the damage
is foreseeable and not too remote: Wagon Mound.

® Injunction is a prima facie remedy once unreasonable interference is satisfied: Coventry. But anxiety is
not recoverable under private nuisance: Hunter. Claire cannot recover damages for this. Also, the
reduction is property value may be recovered if there is property damage only, as pure economic loss
is not recoverable: NRI v Williams.

2020 (Resit B) Q4:

Barbara and her daughter Zara live in a residential neighbourhood and Barbara has run a hairdressing
business from her home for over 20 years. They return from a long holiday to discover that they have a
new neighbour Lucy, who breeds and trains dogs. Barbara’s clients often arrive early in the morning and
Lucy’s sleep is disturbed by a succession of cars coming and going, with shouting, laughing and slamming
of doors. Zara holds practice sessions for her jazz ensemble at the weekends and the loud music interferes
with Lucy’s dog training classes. An unpleasant smell from the kennels finds its way into Barbara’s
kitchen, making it difficult to enjoy cooking and eating. Zara is losing weight and her health is affected.
When Barbara complains, Lucy begins to leave a gate open at the rear of her property allowing her dogs
to wander into Barbara’s garden, digging holes and uprooting the vegetables she grows there. Advise
Barbara, Lucy and Zara.

Issues arising:

1. Barbara v Lucy – property damage caused by Lucy’s dogs, smell from kennels making it difficult to
cook and eat – claim under private nuisance. Barbara has the necessary interest to sue. The loss is also
recoverable as it constitutes loss of enjoyment. Property damage is also recoverable (dogs uprooting
vegetables). Of particular interest, is that Barbara complained and Lucy deliberate allowed the dogs to
cause property damage. Malice is evident here. Nuisance will be regarded as serious and unreasonable.

2. Zara v Lucy – Zara does not have the proprietary interest to sue under private nuisance – she is Barbara’s
daughter. Weight loss and effect on health is personal in nature and not recoverable under private
nuisance. She may sue under negligence. HRA 1998 is futile as Lucy is not a public body.

3. Lucy v Barbara – Barbara’s hairdressing business – whether it constitutes private nuisance – Lucy has
proprietary interest to sue. The loss in question is recoverable (loss of enjoyment). Whether the
interference is unreasonable, locality, duration, timing – it is a residential neighbourhood but parties
seem to run other activities from home. Interference may be unreasonable. Barbara may not rely on the
20-year prescription and coming to nuisance defences.

4. Lucy v Zara – jazz ensemble – may not constitute unreasonable interference – only on weekends. Lucy’s
dog training sessions may be abnormally sensitive

2019 (A) Q8:

Julie and Gordon Stephens have been tenants for two years at 17 Acacia Avenue Elksville, which they
rent from Ace Lettings. Living with them are their 19-year-old son Bill, their 5-year-old daughter Casey
and Julie’s mother Maria, who breeds rabbits. The house is semi-detached and adjoins number 19. The
residents of number 19, the Singhs, have a right of access across Julie and Gordon’s back garden. On the

15
other side of the Stephens’s house is Elksville Bowling Club. The Bowling Club has been operating for 25
years. The Stephens family, along with the rest of the neighbourhood, are constantly disturbed on
Saturday nights by the sound of disco music, emanating from the Bowling Club. This also causes
vibrations to the Stephens’s house. The discos do not finish until midnight. Each Sunday morning the
family find that the Bowling Club members have crossed through their back garden into the garden of
number 19, stepping on their flowers and leaving behind rubbish and broken pint glasses. Casey cut her
foot on glass and Gordon will not let Casey play in the garden any more. Julie is suffering from migraines
as a result of the noise, while Bill is constantly experiencing verbal abuse from club members, who stand
on the pavement and shout at anyone passing. Things have become particularly bad recently, and one
Bowling Club member opened the door to Maria’s rabbit cage while passing through the garden. Some
of the rabbits have since found their way into number 19 and caused £2,000 worth of damage by chewing
the Singh’s electrical wiring. Advise the parties.

Answer guide:

Issues to be addressed:

1. Identify causes of action and parties from the facts:

i) Noise on Saturday nights by EBC’s activity – may constitute public nuisance (facts state:
Stephen’s family, along with the rest of the neighborhood) – however, since public nuisance is
not actionable under tort without special damage, special damage from public nuisance needs
to be addressed – OTF: J (migraine), C (cut on foot) and J & G (damage to property) v EBC

ii) Stephens family v EBC: EBC’s activity (disco) may constitute private nuisance resulting in
vibrations, dirtying the garden, destroying the flowers, J’s migraine, C’s cut and inability to
play in the garden anymore and B facing verbal abuse. Stephen’s family may sue the Singhs as
occupiers of the path

iii) Singhs v Maria: damage to wiring because of Maria’s rabbits

2. Public Nuisance action:

i) Public nuisance is a criminal wrongdoing

ii) Special damage above and beyond the inconvenience of the public nuisance itself may be
redressed under Tort Law: Benjamin v Storr

iii) Nuisance has to be ‘public in nature’ – public nuisance is interference that “materially affects
the reasonable comfort and convenience of Her Majesty’s subjects”: AG v PYA Quarries.
Arguably satisfied on the facts, since the noise from the EBC affects the entire neighbourhood

iv) Next, it must be shown that the claimants suffered special damage: this includes financial loss
(Tate & Lyle Industries v GLC, Benjamin v Storr), property damage (Halsey v Esso
Petroleum) and physical injury (Re Corby Litigation Group) – special damage will be found
where is direct and substantial

16
 v) On the facts, all have suffered special damage who have suffered financial loss, property
damage, or physical injury from EBC’s activities and its members, may recover damages
provided loss/injury is substantial and direct: J (migraine), J & G (damage to property) and C
(cuts)

3. Private Nuisance action:

i) The members of the Stephens family, who experience disturbance due to EBC’s use of land –
the EBC members cause disturbance in the form of the noise and vibrations on Saturday nights.
These have led to J’s migraine, the garden being dirtied, the plants being destroyed and broken
glass have cut C’s foot. The EBC members also verbally abuse B.

ii) Only those with legal interest in land may sue in private nuisance: Malone. B and C may not
bring an action. They may not rely on Khorandjian following Hunter. Alternatives: suing
under S6 HRA 1998 instead. But, any claim under HRA 1998 for breach of Article 8 ECHR,
will be useless, since the family members who have legal interest will obtain damages under
private nuisance “on behalf of entire household” and no additional damages will be given for
breach of Article 8: Dobson, McKenna. In any event, EBC is not a public body – HRA action
will fail. J & G presumably have legal interest to sue.

iii) EBC is the defendant, but will argue that the nuisance was in fact caused by others (some
members). Applying Sedleigh-Denfield, they may be liable for nuisance committed by
another/third party where they have continued and/or adopted the nuisance – clearly would
have knowledge and failed to take any measures – Lord Atkin said as long as there is some
personal responsibility for the nuisance and it comes from land occupied and controlled by
EBC, EBC can be liable. On the facts: nothing done by EBC to minimize nuisance. EBC may
be liable.

iv) Whether the interference is unreasonable: Sedleigh-Denfield, Barr: the test is whether an
ordinary person could reasonably be expected to put up with the nuisance, according to plain
and sober standards of living. There is no threshold and the question is of degree, whether the
interference is sufficiently serious to constitute nuisance. Relevant factors: (a) locality, (b)
duration, (c) malice, (d) abnormal sensitivity.

v) Locality (Sturges) favours claimants – not suitable to have a noisy bowling club in a residential
neighbourhood. Duration (De Keysers) – unreasonable to have loud noises every Saturday,
going on till midnight. No malice or abnormal sensitivity on facts. Unreasonable interference
satisfied. The vibration and the noise would be considered unreasonable. Dirtying the garden
is comparable to gypsies dirtying the claimant’s land in Lippiatt – using Lippiatt, it can directly
be concluded that the interference is unreasonable. It is sufficiently serious if C can no longer
play in the garden and abnormal sensitivity cannot be argued here – it is foreseeable that the
EBC’s activity could have this effect: contrast with NRI v Morris. As for destroying flowers,
this would amount to property damage – serious form of interference – automatically found
unreasonable: St. Helen’s Smelting v Tipping. Destroying orchids in McKinnon v Walker was
also considered unreasonable – property damage. Unreasonable interference will be
established. Verbal abuse is comparable to Hussain – harassment, verbal abuse, insults. These
were considered unreasonable in Hussain. The interference will be accepted as unreasonable.

17
 vi) However, whether the respective losses of each family member are recoverable, needs to be
considered. Hunter: Only (a) property damage and (b) loss of enjoyment or amenity value are
recoverable under private nuisance, no claims for personal injury, loss of privacy, distress,
illness: Hunter, Fearn. The claims in respect of noise, vibrations, abuse, inability to play in the
garden and dirtying of the garden may be considered interference with use and enjoyment of
property. The destroyed flowers will also be recoverable as they constitute property damage.
But the migraine experienced by J and the cuts on C’s foot are not compensable under private
nuisance, these amount to personal injury and may be redressed through negligence.

vii) EBC may raise defences: 20-year prescription (Sturges, Coventry). The defence will not apply
where the claimant has objected before the expiry of 20 years. Here, J & G have only been
renting for 2 years. The defence will not apply. EBC may also raise coming to nuisance but this
is not a defence (Coventry, Miller), (iii) Public benefit is not a defence (Barr)

viii) Appropriate remedy: (i) Injunction (Coventry) and (ii) Damages (Coventry, The Wagon
Mound). J & G may be entitled to an injunction for noise and vibration against EBC for the
entire family, and damages for property damage and dirtying the garden. Damages should be
recoverable as the losses are not too remote and are foreseeable. No damages may be awarded
for the migraine or the cuts for reasons discussed above.

4. Claims against Singhs (for nuisance caused by EBC members when using the right of access belonging
to Singhs, i.e. dirtying and destroying Stephen’s garden, causing injury to C and abuse to B) – possible
for Singhs to be sued – failed to take action to prevent the access path to be used to cause nuisance
despite knowing (adopted nuisance – Sedleigh-Denfield). Can also be said to have “authorized”
nuisance – the access path was used to commit nuisance – similar to nuisance committed by people
using path owned by council in Pusey v Somerset CC. Contrast with Hussain v LCC (in Hussain,
property was not used to commit nuisance, but on the facts, EBC members did use Singh’s access path
to commit nuisance). The Singhs may be liable for the nuisance caused by the EBC members. No
defences will apply.

5. Claim under rule in Rylands v Fletcher:

• The Singhs may sue M – they have proprietary interest to sue (Transco v Stockport states, that
since the rule is a subspecies of private nuisance and is a land-related tort, the same requirement
of legal interest applies)

• Explain the rule from R v F: deals with escapes from land causing damage

• M may be sued as long as she had control over the thing that escaped – on the facts she was
breeding the rabbits and occupied the property as well – may be sued

• Conditions for liability must be satisfied:

a) Accumulation – must be something brought onto land, not naturally growing: Rylands,
Giles v Walker – rabbits were brought on land

18
 b) Dangerous substance – chemicals (Cambridge Water), large quantities of water
(Transco, Rylands) these have been considered dangerous. Arguable that rabbits can
cause danger – this requirement may be satisfied

c) Escape causing damage: there must be movement from D’s place to a place outside D’s
control: Read v Lyons –satisfied on the facts

d) Non-natural use: Transco states that it must be some extraordinary use of land that
carries with exceptional risk of danger – arguably not satisfied here – unlikely that M
was breeding large number of rabbits – seems more domestic than industrial – may not
be a non-natural use (compare with Rickard)

e) Damage must be reasonably foreseeable: Cambridge Water – arguable that it is

foreseeable

• M may be liable under the rule

• Defences: M will argue ‘act of stranger’ – this will usually defeat liability – members of the
EBC let the rabbits out, thus M can no longer be liable: Perry v Kendricks, Rickards v Lothian)

2019 (B) Q7:

Mercedes lived in a substantial London house, within an area for which Aqua Water Utilities (‘Aqua’)
provided sewers for the removal of sewage and surface water. Following a week of heavy rainstorms and
due to a blockage created by vandals under the highway, the drains overflowed into the garden belonging
to Mercedes. The road was closed for two weeks inconveniencing all the neighbours. Mercedes was forced
to cancel an informal weekly painting class in her home, run by a local artist, Bentley. About a dozen
people would normally attend the class, paying a nominal £5 to cover refreshments and a contribution to
Bentley, which usually totalled £150. The following year, Mercedes invited Toyota to move into the
ground floor of the house, which Toyota occupied rent-free in return for helping the now ageing Mercedes
with shopping and household chores. Her next door neighbour, Ford, has failed to maintain and repair
the ancient water pipes in his house. One day, while Mercedes was away on holiday, a leak developed
from Ford’s property into Mercedes’s house. The water ruined the carpets in Toyota’s room and some
of her possessions. She then had to move to a nearby guesthouse because of the terrible smell left by the
water. When Mercedes returned, she was dismayed to find a number of cracks in the walls of her house.
A surveyor reported that he believed these were the result of subsidence caused by the rising water table
in the area as well as the incursion of the roots from fast-growing trees planted by her neighbour, Skoda.
The trees, a new species called leylandii grossilio offesii, have a previously unknown capacity to send out
roots with a speed and extensiveness that matches their destructive effect. Advise Mercedes, Bentley and
Toyota.

Issues:

a) Drains overflowing from Aqua Water Utilities:

i) Rule in R v F – flooding when drains overflowed – may be construed as escape from land. M may sue
Aqua, since she has the required interest (Transco, Hunter). AWA may be sued since they have control
over the water that overflowed. Conditions for liability must then be addressed: (i) accumulation (Giles,
Rylands) – satisfied as they did accumulate water on their premise. (ii) the thing accumulated has to be

19
 a dangerous substance – in Transco and Rylands water in large quantities were considered dangerous.
(iii) the thing accumulated must have escaped causing damage – moved to a place outside D’s control:
Read v Lyons. This is satisfied on the facts – overflowed into M’s garden. (iv) there must have been
non-natural use of land by Aqua – according to Transco, there has to be extraordinary and unusual use
of land that carries with is increased risk – in Transco this was not established in relation to D’s water
supply activity, therefore, in Aqua’s case also, it is likely that the sewer treatment was not non-natural
use. (v) damage has to be reasonably foreseeable – arguable that water overflowing is reasonably
foreseeable – not too remote: Cambridge Water, The Wagon Mound. However, if it is found that the
use of land was natural, AWA will not be liable under the rule. In any event, the may successfully raise
the defences of ‘act of stranger’ (Perry, Rickards), and ‘act of God’ (Nichols v Marsland, Greenock).
Aqua is unlikely to be liable for the flooding under the rule.

ii) Public nuisance – those who suffered additional losses may seek compensation for special damage
flowing from the nuisance. Facts state that the flooding caused inconvenience to the neighbours and the
road closure. If the effect of inconvenience is so widespread and indiscriminate, it may be regarded as
‘public in nature’: AG v PYA Quarries. M may claim losses in having to cancel the classes. But loss
does not seem to be substantial here: contrast with Benjamin v Storr, Tate & Lyle.

iii) Private nuisance action – having to cancel the painting class – loss of use and enjoyment may be
recoverable. Comparable to claimants in Christie v Davey who could not conduct music lessons at home
due to nuisance by defendants. M has the necessary interest to sue: Hunter. She may sue Aqua, since
they are the occupier of the property from which nuisance proceeds, it does not matter that the blockage
was caused by vandals or nature. If Aqua had notice, they would be required to act and failing to do so
would amount to adopting the nuisance: Sedleigh-Denfield. However, if there was no knowledge, the
may not be liable. Also, if nothing could be done to prevent the interference, liability will not arise:
Goldman, Holbeck Hotel. The next issue is whether the interference was unreasonable (Barr), looking
at circumstances, whether it was something an ordinary person can reasonably be expected to put up
with. Flooding in Sedleigh-Denfield was considered nuisance. Aqua’s sewers are close to residential
property and thus, the flooding may be unreasonable (Barr). However, court may conclude that duration
wise, this was a one-time incident, and did not cause property damage, therefore may not be
unreasonable: contrast with Sedleigh-Denfield where property damage occurred. Aqua may not be
liable under private nuisance.

iv) In conclusion, M’s claim for the flooding will fail whichever way.

b) Leak from Ford’s property: Rule in Rylands v Fletcher: M would want to sue for property damage
(carpets) and T would want to sue for the same (her possessions). Note: T may not sue for the cost of
moving to another guesthouse – this loss would be purely economic and not recoverable under the rule
– the damaged carpets do not belong to T, they belong to M, therefore additional costs incurred to move
would be purely economic, not consequential (Weller v FMDRI, Transco). As discussed above, the
same requirements apply – while M will have the right to sue (legal interest), it is argued that the
arrangement between T and M will not give T any proprietary interest to sue (staying rent-free) – thus
T may not sue. Even though both M and T have respectively suffered property damage claimable under
the rule, and T has suffered consequential loss which is also allowed under the rule (Transco) (having
to move to a guesthouse), only M’s claim may proceed since T does not have proprietary interest to
sue. The leak from F’s property may be considered an escape from property causing damage – thus may
fall under the scope of the rule. M will satisfy the requirements of accumulation (pipes and water
accumulated by F on his property), escape causing damage (since the water did leak into M’s house and

20
 cause damage), and foreseeability of damage (as this is arguably foreseeable). However, M will fail to
satisfy the requirements of ‘dangerous substance’ and ‘non-natural use’. The circumstances are similar
to Rickards – water leaking from domestic property – in Rickards, notwithstanding that the leak was
caused by a third party, the defendant could not be found liable also because the use of water in his
property was domestic in nature, thus not dangerous or non-natural. The same would apply in F’s case,
rendering him not liable under the rule.

c) Encroachment of tree roots from Skoda’s property: Private nuisance because in Hunter,
encroachment was identified as a form of private nuisance. Same requirements discussed above would
apply – M has the necessary legal interest to sue, and S may be sued – planted the offending tree. Facts
are comparable to Network Rail Infrastructure v Williams (2018). In this case, the claimants owned
property near the defendants’ railway embankment, which was infested with Japanese knotweed, an
extremely invasive and damaging wild plant. The claimants sued in private nuisance, claiming damages
for diminution in value of their homes, due to the encroachment of the plant and as well as requiring
Network Rail to treat and eliminate the knotweed. It was held that diminution in property value, being
a pure economic loss could not be recovered under private nuisance; only loss of amenity in terms of
use and enjoyment of the land would constitute private nuisance. That was indeed present: the risk of
future damage to structures on the land imposed a burden on the claimants, which impaired the quiet
enjoyment of their land, and so was recoverable. Applying this to the facts, it is submitted that M would
successfully recover damages for loss of enjoyment caused by the hassle of dealing with the tree roots,
as well as the risk of future damage to her property caused by the roots. She may also recover the cost
of getting rid of the tree roots, if any such expense is incurred as well as any loss of enjoyment. However,
if she wishes to recover economic losses in the form of reduction in the value of her house due to the
cracks, such loss would not be recoverable applying NRI v Williams since private nuisance does not
permit claims for pure economic loss. Also, the cracks are due to the rising water table. Damages are
not recoverable in the absence of actual property damage. It will also be too remote for compensation:
Wagon Mound.

2019 (O) Q3:

Lord Sandwell owns a large country estate in Oxhampton. He develops it as an environmentally-friendly
residential adventure centre (the ‘Swing High Centre’) for stressed-out executives. To this end, he has
constructed a network of ropes, ladders, and bridges in the canopy of his trees for them to come and
’Swing High’ from tree to tree. Unfortunately, misplaced marketing has led to the majority of his
customers being large, noisy groups of young people. Lord Sandwell also provides facilities for
paintballing and a quad-bike course. In line with his stated environmental policy, Lord Sandwell has
recently begun to use large quantities of seaweed as fertiliser for his large organic vegetable patch. He
has been encouraged to do so by the council’s recycling officer Hugo. Lord Sandwell has received
complaints from:
(a) Marilyn, who lives downwind of the estate and claims that the smell of rotting seaweed makes her
physically sick.
(b) Donald, a 14-year-old, who lives on a neighbouring farm and says that the noise from the quad
bikes has made his pet guinea pigs miscarry their young.
(c) Anisha, a neighbour, who says that the ‘Swing High Centre’ has lowered the tone of the
neighbourhood and that her back garden can be seen from some of the higher tree platforms.
Advise Lord Sandwell regarding his potential tort liability.

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 Suggested answer (1380 words):

Lord Sandwell’s (‘LS’) use of his property (the Swing High Centre(‘SHC’)) may give rise to claims by
Marilyn, Donald and Anisha for claims under nuisance. “The very essence of private nuisance… is the
unreasonable use by man of his land to the detriment of his neighbour”: Miller v Jackson. Parties have been
affected in terms of their property and/or enjoyment of land. The proper cause of action would be ‘private
nuisance’. The appropriate defendant is LS, the creator of the nuisance, due to his degree of responsibility and
control (Sedleigh-Denfield v O’Callaghan).

Marilyn’s claim

M will claim in respect of the smell from the rotting seaweed causing feeling of sickness. Proprietary
interest is required to sue (Malone v Laskey; Hunter v Canary Wharf). The facts indicate that M lives downwind
of the estate, presumably with legal interest as owner or tenant. Next, the question is whether the smell constitutes
“unreasonable interference to her quiet and peaceful enjoyment of land” (Hunter). Barr v Biffa Waste Services
states that the test is simply what an ordinary person could reasonably be expected to put up with in all the
circumstances of the case. It was held in Sturges v Bridgman, that the character of the locality must be taken
into account. The parties appear to be in a residential area in the countryside. LS will argue that while the use of
seaweed fertilizer in large quantities is not unreasonable. But LS uses large quantities of the seaweed and the
smell is so severe as to cause M to feel physically sick, this comparable to the level of odour that disturbed the
claimant in Barr and is likely to be considered unreasonable in the particular location. Furthermore, the duration
of the interference is relevant, according to Barr. “A temporary interference which is substantial will be an
actionable nuisance.” Although the use of the seaweed appears to be recent, it would be fair to assume that it
would continue daily, on a long-term basis. It will constitute unreasonable interference.

LS will argue that SHC generates great public benefit for the young people and the community in
general. It was held in Barr that the public benefit underlying an offending activity cannot be accepted as a
defence because “the private individual retains his valuable common law right to enjoy his private property.”
As such, LS is likely to be found liable for the smell from the rotting seaweed. The facts also do not indicate that
LS has obtained planning permission for his SHC. In Coventry, the SC has clarified that planning permission is
not a defence to action for private nuisance. LS will argue that Hugo, the council’s recycling officer, encouraged
his use of the seaweed as an environmental-friendly fertilizing option. However, this is not to be taken as
permission, licence or authorisation to commit nuisance and will not be a defence: Coventry.

A claimant is only entitled to remedy where the interference causes damage to property, affects
enjoyment of property, or causes loss of amenity value: Hunter. M has suffered loss of enjoyment and may
recover for this, but not for feeling physically sick and this would be considered harm that is personal in nature.
Thus, it is submitted that while the claim for physical sickness will fail, the claim for loss of enjoyment is
sustainable. Where unreasonable interference is shown, the claimant is prima facie entitled to an injunction
(Coventry v Lawrence). It is submitted that the interference is sufficiently serious to warrant an injunction, and
since it is unlikely to cause any material loss or hardship to LS, it may well be granted on the facts: Coventry.

Donald’s claim

D would claim in respect of the noise from the quad bikes causing his guinea pigs to miscarry. D would
lack the necessary interest to sue. Given that his is 14-years of age, living in a neighbouring farm, it is highly
likely that D would be living with his family, and would not be the one in his family with the necessary legal
right to sue. Khorasandjian v Bush (1993) can no longer apply as decided in Hunter, and thus, any substantial

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link in land absent legal interest is not sufficient for an action in private nuisance. However, in Dobson v Thames
Water Utilities (2009) children claimants who lacked proprietary interest to sue under private nuisance,
successfully established violation of the Article 8 ECHR (under S6 HRA 1998) - right to enjoyment of private
family life, in relation to nuisance caused by the defendant (public body). However, Dobson will not assist D
here, because firstly, a successful claim under S6 HRA 1998 can only be brought where the defendant is a public
body, and LS is not a public body. Secondly, it is unlikely that D’s guinea pigs miscarrying as a result of LS’
activity, would constitute a violation of D’s Article 8 ECHR right. D may sue for property damage under
negligence instead.

In any event, D may not be able to show that the interference is unreasonable. There is no evidence of
the noise levels being unbearable to others living nearby. LS will also argue that the guinea pigs are abnormally
sensitive, in that the problem of guinea pigs miscarrying is uncommon and unusually sensitive, and thus that the
interference is unforeseeable: Robinson v Kilvert, NRI v Morris. Here, the case of Hollywood Silver Fox Farms
v Emmett is relevant. The defendant deliberately fired his gun creating loud noises on purpose, to interfere with
and disrupt the claimant’s fox breeding activity on their farm. The court held that the foxes were abnormally
sensitive and that ordinarily, the noise created by the defendant would not amount to unreasonable interference.
However, because it was deliberately carried out with malice, the defendant was found liable. Emmett will apply
to the extent that the interference is not unreasonable as the effect on D’s pets is abnormally sensitive. And
liability cannot arise like in Emmett, in the absence of malice on LS’ part.

Anisha’s claim

A will have to show that the activities at SHC that allegedly lower the tone of the area, and allow guests
at SHC to have a view of her back garden, amount to private nuisance. The same requirements discussed above
will apply. A has the necessary interest to sue. In Coventry, the SC found that nuisance in the form of loud noises
from a motor racing stadium, amounted to unreasonable interference when occurring in the Suffolk countryside.
The claimant’s residential bungalow was located nearby. LS’ activity is also carried out in the countryside. The
level of noise from a combination of swinging among trees, quad-biking and paintballing, by large groups of
youngsters is unlikely to amount to an unreasonable interference. Given the timing and duration of the activity
(throughout the day, every day), A is likely to establish unreasonable interference on the facts. As discussed
above for M, no defence is likely to apply. LS is likely to be liable.

However, LS would argue that the activities, have not caused A to suffer any one of the losses or types
of damage that are recoverable under private nuisance. On the facts, A would argue that where the defendant’s
activity ‘lowers the tone of the neighbourhood’, this may amount to special damage such as in cases like
Thompson-Schwab v Costaki and Laws v Florinplace (1981) where it was held that “an actionable nuisance
extends to cover cases where use of property is such an affront to the reasonable susceptibilities of ordinary
people that it constitutes interference with reasonable domestic enjoyment of property”. In Laws, the court found
that a sex shop in a residential area did interfere with the claimant’s peaceful enjoyment of property. LS’ activity
is in stark contrast with the activities of the defendants in Thompson-Schwab and Laws. The claim that the SHC
lowers the tone of the neighbourhood is likely to fail. Further, it is also argued that the A’s concern that her back
garden being visible from the SHC will not be recoverable here since her concern relates more to her right of
privacy, which is not a land-related interest protected by private nuisance law (Fearn v Tate (2020)). A’s claim
will therefore fail under private nuisance, and she will not be entitled to any remedy in the circumstances.

2018 (A & B) Q9
Eco Ltd has been manufacturing furniture in its factory on the industrial estate outskirts of Westport
village for over thirty years. The factory operates on a 24-hour basis and accepts deliveries of timber

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throughout the day and the night. Two years ago, Mr and Mrs Jones moved into Westport House, the
only residence in close proximity to the estate. Mrs Jones needs a quiet environment for the daily yoga
classes she runs from her home but she had to cancel her classes because of the noise from the factory.
The noise from the machines during the night keeps Mr and Mrs Jones awake. Medical evidence shows
that Mr Jones’ increased asthma attacks are due to invisible particles in the sawdust emanating from
Eco’s factory. The invisible particles have also caused damage to the exotic shrubs that Mr Jones planted
in his garden. The large trucks coming through Westport village to deliver consignments of timber to Eco
throughout the night cause a loss of sleep to the villagers of Westport. Westport Lodge Hotel guests are
increasingly posting negative comments on social media about the noise at night. The negative publicity
has led to large scale booking cancellations and the hotel is now being forced to close. Eco decided to
extend its factory to meet the increased demand for its furniture. A power blasting operation was
required to cut through some underground rock to dig the foundations. Eco appointed a power blasting
expert to oversee the operation but unexpectedly an explosion occurred during the process. The stones
from the blast smashed windows in the Jones’ house. Another stone hit Olga, a cyclist passing on the road
outside the factory, causing her an eye injury. In respect of the above incidents discuss the liability of
Eco, if any, in the tort of nuisance and/or Rylands v Fletcher.

Answer guide:

1. Mr & Mrs Jones – noise from factory – keeping them awake

2. Mrs. Jones – noise from factory – cancelled yoga class
3. Mr. Jones – invisible particles in sawdust – increased asthma attacks
4. Mr. Jones – invisible particles – damages exotic shrubs
5. Villagers – large trucks at night – unable to sleep Eco = D
6. Westport Lodge – noise at night affecting guests – closure
7. Mr. & Mrs Jones – stones from explosion/ power blasting operation – damaged windows
8. Olga – cycling by – stone from explosion – eye injury

Some relevant considerations:

w “industrial estate outskirts of Westport” & “Wesport House, the only residence in close proximity” –
relevant to ‘locality’ – type of locality industrial
w “operates on a 24-hour basis, deliveries throughout the day and night” – relevant to duration
w “manufacturing… for over thirty years” – relevant to defence of 20-year prescription, there first
w “two years ago, Jones moved in” – relevant to defence of 20-year prescription – less than 20 years
w “noise keeping them awake” – does this meet the level of seriousness needed – can an ordinary person
reasonably be expected to put up with this
w “yoga classes” – relevant to the question of ‘loss of enjoyment’ – is this a kind of loss that is protected
– if there are financial losses from cancelled class – may be recoverable as loss of enjoyment – however,
are yoga classes abnormally sensitive?
w “asthma attacks” – relevant to type of damage – is this recoverable – alternative: negligence
w “emanation of particles” – private nuisance (indirect interference) or escape from land (R v F) – better
to be considered an indirect interference than escape from land
w “damage to exotic shrubs” – damage to property, recoverable, but is this abnormal sensitivity?
w “loss of sleep to villagers” – does this amount to public nuisance, h/ver no action by villagers under
Tort, this falls under criminal law
w “hotel forced to close” – special damage recoverable under public nuisance?

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 w “stones from blast smashed windows in Jones’ house” – private nuisance, R v F or both – stones flying
= escape, yet, also a form of interference – causing property damage – issue: is damage reasonably
foreseeable (“unexpected explosion”) – conditions for R v F satisfied? Defences?
w “stone hitting Olga causing eye injury” – not recoverable under private nuisance/ R v F – not a type of
loss that is recoverable – alternative: negligence

2018 (O) Q4:

Discuss the liability, if any, that might arise in respect of the following incidents:
Zoe bought a house with a large garden in a rural farming area. She obtained planning permission to
build an extension to manufacture organic herbal remedies in her home. In a short time, the sales of Zoe’s
remedies reached a very high level and she employed five people to meet the demand for her products.
Gregory, who occupies the farm next to Zoe’s house, told Zoe that the chemical fumes from the solvent
she uses for sterilising the manufacturing equipment have become unbearable, even with the windows
closed. The doctor has told Gregory’s wife Siri that the recurring eye infections she is suffering are caused
by the chemical fumes. Zoe was indignant when Gregory made the complaint and refused to consider
taking any action to reduce the problem. Zoe claimed that there is no scientific evidence to show that
chemical fumes from the solvent cause harm and said that Siri’s eyes must be extra sensitive. Although
he knew it might annoy Zoe, Gregory went ahead with the rock concert he planned to hold in a field on
his farm. He sold hundreds of tickets and the loud music and fireworks display from Gregory’s land kept
all the villagers awake through the night. A large firework exploded, shattering the windows in Zoe’s
house. The exploding firework also caused injury to Jimmy, one of the musicians playing on the stage,
and injured Ngoze, a cyclist passing on the road outside Gregory’s farm.

Answer guide:

1. Relevant area of tort in question: nuisance – private nuisance and public nuisance

2. Parties:
a) Zoe would sue Gregory for property damage (shattered windows) under private nuisance
b) Gregory would sue Zoe for loss of amenity/ enjoyment (chemical fumes) under private nuisance
c) Siri would sue Zoe for recurring eye infections – physical injury (chemical fumes) under private
nuisance
d) Jimmy & Ngoze would want to claim special damage flowing from public nuisance (physical
injury)
e) Villagers affected by noise – consider whether private or public nuisance

3. Z v G (shattered windows- exploding fireworks during concert): Z is advised to sue under private
nuisance.

> Private nuisance claims may be made only for land/ property related losses: damage to property, loss
of enjoyment or amenity and encroachment: Hunter v CW. On the facts, G’s use of land has caused
property damage. This is claimable.

> In order to sue, Z must have proprietary interest in land: Malone v Laskey, Hunter. Facts state that
Z bought the house – owner – has the necessary proprietary interest to sue.

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 > Private nuisance involves interference that is indirect – on the facts interference was in the form of
noise & explosions – this is claimable

> To prove unreasonable interference – balancing exercise – modern test laid down in Barr v Biffa
Waste Services: “… the test is simply what an ordinary person could reasonably be expected to put
up with… For any nuisance, there is no absolute standard, it is a question of degree whether the
interference is sufficiently serious to constitute a nuisance, which is to be decided by reference to all
the circumstances of the case…”

> Courts look at factors such as locality, duration, malice, abnormal sensitivity, seriousness

> Nature of locality is relevant: Sturges v Bridgeman. In Sturges the character of the locality was
found to have changed over years that the D’s use of land (although preceding Cl.’s occupation &
use of his land) was no longer appropriate – locality had changed. OTF: it is a rural farming area –
although G owns a farm there, source of nuisance is the concert, with loud music & fireworks and
NOT the farming activity. G would argue that it is common for concerts to be held on farms/ open
rural land. Z would want to rely on St Helen Smelting v Tipping. Even though locality favours D’s
activity, where D’s activity has caused property damage – this is regarded as serious interference
and will automatically be deemed unreasonable. Z has suffered property damage like the Cl. in St.
Helen Smelting. Therefore, unreasonable interference will be established.

> Duration is relevant – the more frequent the interference, the more likely for it to be found
unreasonable: De Keyser’s Royal Hotel v Spicer Bros. H/ver in Crown River Cruises v Kimbolton
Fireworks it was held that short duration interferences such as fireworks display would still be
counted as unreasonable where it was serious enough to cause property damage. Again, since G
caused Z’s windows to shatter, interference would be unreasonable.

> Malice is relevant here too – where D caused interference motivated by malice, nuisance will be
considered unreasonable: Christie v Davey, Hollywood Silver Fox Farms v Emmett. G is likely to
be found liable – unreasonable interference established.

> Defences – G may want to rely on certain defences – only arguable defences to private nuisance:
statutory authority, 20-year prescription and act of stranger. H/ver none would apply on the facts.

> Z would want damages as a remedy. Hunter states that damages may be claimed for interference
that causes loss of enjoyment & property damage provided the damage is not too remote (wagon
Mound). Z would clearly be able to recover damages for the damaged windows (Miller v Jackson)

4. G v Z (loss of enjoyment – fumes)

> G is also advised to sue Z under private nuisance – the fumes are said to interfere with his use &
enjoyment of land – unbearable even with windows closed

> The same legal issues apply as discussed above: G may sue for the type of interference suffered
subject to the interference in the form of the chemical fumes being found unreasonable

> The same test & factors as stated above would apply

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> Locality – it is a farming locality & G would argue that chemical fumes are unreasonable in such a
locality. H/ver Z would argue that she has just obtained planning permission. In Gillingham v MD
it was held that planning permission is capable of changing the nature of the locality. H/ver in
Wheeler v JJ Saunders the planning permission obtained to extend pig farming within one’s own
property was not significant enough to alter the character of the locality. In Coventry v Lawrence it
was held that planning permission may impact the character of the locality but it certainly cannot be
taken as endorsing nuisance: “A planning authority has to consider the effect of a proposed
development on occupiers of neighbouring land, but that is merely one of the factors which has to
be taken into account. The planning authority can be expected to balance various competing
interests, which will often be multifarious in nature, as best it can in the overall public interest,
bearing in mind relevant planning guidelines. Some of those factors, such as many political and
economic considerations which properly may play a part in the thinking of the members of a
planning authority, would play no part in the assessment of whether a particular activity constitutes
a nuisance …” The SC in Coventry held that planning permit given here did not completely alter
the character of the locality from residential to sporting but changed the character of the locality to
include racing activities. Nonetheless D’s activity would still be found unreasonable against the
backdrop of the current locality because it could not be carried out without causing nuisance. OTF,
it is unlikely that the planning permission obtained changes the nature of the locality – the change is
small scale – applying Wheeler interference by Z may be found unreasonable

> Despite receiving the complaint Z was indignant & did not take any action – Z may argue that this
is evidence of malice – this may result in a finding that interference by Z was unreasonable: Christie

> Unreasonable interference would be established against Z

> Z would want to rely on planning permission as a defence. H/ver planning permission is not a valid
defence: Coventry. None of the other defences would apply.

> G would want the remedy of injunction. In Coventry, the SC held that a Cl. would prima facie be
entitled to an injunction upon proving unreasonableness – H/ver the Ct. has the discretion to award
damages in lieu of injunction taking into account the public benefit of D’s activity (Miller v Jackson)
& public policy

> G may succeed in obtaining an injunction as did the Cls in Coventry.

> G may attempt an action under the rule in Rylands v Fletcher arguing that the fumes escaped from
Z’s property. H/ver there is no evidence of property damage to warrant a possible claim under the
rule. The rule usually applies in cases of physical escapes from land causing damage to another’s
property. Further, liability under the rule requires that D had carried out some ultra-hazardous
activity, which can be interpreted as a non-natural use of land. After Transco, it is said that liability
is difficult to establish under the rule today, given the high threshold for “non-natural use”. The rule
is usually also preferred for cases involving isolated escapes whereas the complaint relating to
chemical fumes seems to take the form of a continuing indirect interference. Thus, it would be more
appropriate to frame the claim as falling under private nuisance principles.

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 > To sue Z for the fumes under negligence would be futile as there is no damage that would be
recoverable under negligence: Rothwell v C&I Co. Loss of enjoyment cannot be claimed under
negligence.

5. S v Z (eye infection – fumes)

> S’s claim would also be brought under private nuisance
> The same requirements as discussed above for G would apply for S
> Since S is G’s wife, she may have the necessary proprietary interest to sue, subject to the Matrimonial
Homes Act 1983 & Family Law Act 1996
> H/ver S’s claim would fail as she has suffered physical injury & this cannot be claimed under private
nuisance: Hunter
> She may alternatively sue Z under negligence

6. Villagers – noise from rock concert & fireworks on G’s farm

> The villagers may complain that the noise from the concert amounts to public nuisance

> Public nuisance is a criminal wrong

> In AG v PYA Quarries (1957) it was defined as “any nuisance is ‘public’ which materially affects
the reasonable comfort and convenience of life of a class of Her Majesty’s subjects. The sphere of
the nuisance may be described generally as ‘the neighbourhood’; but the question whether the local
community within that sphere comprises a sufficient number of persons to constitute a class of the
public is a question of fact in every case… Nuisance may be considered public in nature if it is so
widespread in its range and so indiscriminate in its effect that it would be unreasonable to expect
each affected member of public to bring an action to put an end to it.”

> The extent of the disturbance from the concert is unclear from the facts – if indeed the “village”
comprises a large number of people and can be described as the entire “neighbourhood” being
affected, this may amount to public nuisance.

> If the effect is not so widespread, the affected villagers may bring an action under private nuisance
against G – the same discussion for Z v G above applies – H/ver whether the villagers too will
establish unreasonable interference is doubted – no damage suffered

7. Jimmy & Ngoze

> Provided that it can be shown that the concert amounts to public nuisance, J & N may claim damages
for special damage against G

> Special damage may be recovered over and above the inconvenience flowing from the public
nuisance: Tate & Lyle Industries v Greater London Council – in this case the cost of dredging was
recoverable

> It has been suggested that physical injuries are recoverable as special damage – J & N’s claim against
G for special damage (physical injuries) would be claimable (Re Corby Litigation Group)

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 > Alternatively, both may pursue claims against G for their respective injuries under negligence
instead since personal injuries are not recoverable under private nuisance

2013 (A/B) Q8:

Warhorse plc manufactures defence equipment. In order to meet large orders for weapons from overseas
countries (for which it has export licences) it has recently had to operate its production lines all through
the night at its factory. This is close to a housing estate on the outskirts of Paxtown. One of the houses is
occupied by Felicity and her autistic teenage son, Gus. Gus is very distressed by the lights and noise from
the factory and is hardly able to sleep. Felicity is unable to work because she cares for Gus, and has
enrolled for an online distance learning degree programme. Warhorse’s equipment frequently interferes
with the reception and transmission from her computer. A group of pacifist protestors has occupied an
empty council property nearby. The council is sympathetic to their objectives and is taking no action to
evict them: indeed, it has allowed them to earn some money by installing equipment to recycle old paper.
They receive more paper than they are able to recycle and a huge quantity of paper is stacked on the
property. One very windy night a large quantity of paper blew away and blocked the drain in Hilda’s
nearby house. The house was badly flooded. Discuss any claims in nuisance or under the rule in Rylands
v Fletcher.

Answer guide:

1) Gus will want to sue Warhorse under private nuisance – interference to enjoyment of property – lights
and noise from factory:

i) Define private nuisance: Hunter, Sedleigh-Denfield

ii) Warhorse is the creator of nuisance and may be sued: Thomas

iii) Gus does not have proprietary interest to sue (Hunter; Khorasandjian can no longer apply).
Alternative claim under HRA 1998, violation of Article 8 ECHR like in McKenna. Another
alternative: negligence. However, distress is not recoverable under negligence.

iv) Hunter: only losses related to land/ property are recoverable: (a) encroachment, (b) property
damage and (c) loss of enjoyment and amenity value. Noise and flashing lights disturbing sleep
amounts to interference to peaceful enjoyment (comparable to Coventry). This is recoverable.
However, distress is not recoverable – personal injury is not recoverable under private nuisance

v) Whether the interference is unreasonable: Hunter, Sedleigh, Barr (current test). Discuss
factors: (a) locality (Sturges); (b) duration (CRC v Kimbolton; De Keyser’s Hotel); (c) public
benefit (Barr). OTF: locality – close to housing estate, in this case export licence unlikely to
alter the character of the locality – distinguish with Gilligham BC v Medway Dock, duration –
production all through the night, public benefit irrelevant to the question of unreasonableness.
Abnormal sensitivity and malice will not apply. No sensitivity of property, autism doesn’t count
as abnormal sensitivity. As a whole, unreasonableness will be satisfied.

vi) Defences: Warhorse will argue that it has export licence, however this will not be sufficient for
the statutory authority defence (Allen; Barr). Planning permission is also not a defence:
Coventry. 20-year prescription cannot apply OTF, number of years not specified (Sturges).
And coming to nuisance is not a defence: Miller.

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 vii) Gus would be prima facie entitled to an injunction upon proving unreasonableness but courts
may grant damages in lieu given the public benefit of Warhorse’s activity and the demand for
weapons from overseas: Coventry; Miller

viii) However, as a whole the claim under private nuisance will fail because Gus doesn’t have
proprietary interest.

2) Felicity will want to sue Warhorse under private nuisance – interference to enjoyment of property –
Warhorse’s equipment interferes with reception and transmission from her computer, which she uses
to work from home:

i) Law on private nuisance claims is as laid down for Gus

ii) Felicity may claim as she has proprietary interest on the facts – owns the property

iii) Warhorse is the creator of nuisance and may be sued

iv) Inability to use computer to work from home, in Felicity’s circumstances will amount to
enjoyment and amenity loss – this is recoverable under private nuisance: Matania; contrast
with loss of TV signal reception in Hunter

v) Unreasonable interference will most likely be established as argued above for Gus – based on
locality, duration, public benefit – the interference will be considered unreasonable. However,
Warhorse will raise abnormal sensitivity: Robinson; NRI v Morris. Distinguishing from these
cases, it is argued that interference is likely to happen to any computer (McKinnon). No
abnormal sensitivity.

vi) Warhorse will not be able to rely on any defence as argued above for Gus

vii) Felicity will succeed, and may request an injunction as the most effective remedy OTF.
However, as argued above for Gus, the court has the power to grant damages in lieu in the
circumstances: Coventry

3) Hilda will want to sue the protestors and/or the council for the escape of papers that blocked her drain
causing flooding, under the rule in R v F:

i) The rule originated from the case of Rylands v Fletcher, where the defendant was found liable
for the escape of water from his premise, causing damage to the claimant’s neighbouring
property, even though the defendant was unaware and could not control the circumstances that
led to the escape.

ii) The rule laid down in Rylands by Blackburn J is: “anyone who brings and keeps on land for
his own purpose, anything likely to do mischief if it escapes, must do so at his own peril and if
he fails to, he is prima facie answerable for all damage that is the natural consequence of the
escape.”

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iii) Later in Transco v Stockport MBC, Lord Bingham explained that the rule was sub-species of
private nuisance that deals with interferences in the form of escapes from land. As such, the
claimant must possess proprietary interest to sue as in Hunter, and claims are allowed only for
property damage and consequential financial loss but not for pure economic loss or personal
injury. OTF: Hilda has proprietary interest to sue. Also, Hilda has suffered property damage as
a result of the escape.

iv) The protestors accumulated the paper that escaped, therefore they may be sued, however, due
to inability to compensate, the council would be the better defendant for compensation. OTF
the council allowed the installation of the equipment to recycle paper, was sympathetic to their
cause and did not evict them. Council may have directly authorised the interference/ escape:
Lippiat; Coventry. Council also has control over the premise from which the escape happened.
Therefore, it may be sued.

v) Firstly, the D must have accumulated something on land for his own purpose. Naturally present
substances will not attract liability under the rule: Giles v Walker. The paper was stacked on
the land – accumulation is satisfied.

vi) Secondly, the substance accumulated must be ‘capable of causing mischief if it escapes’, i.e. it
has to be a dangerous substance. Water in substantial volumes will usually be regarded as a
dangerous substance (Transco; Rylands) and the same goes for chemicals: Cambridge Water
v Eastern Counties Leather Plc. The paper is arguably dangerous – huge quantities –
comparable to British Celanese (haphazard storage of aluminium foils that flew over). This
requirement is satisfied OTF.

vii) Thirdly, it has to be shown that there was an escape causing damage. In Read v J.J Lyons it
was held that no escape occurred where the movement of harmful substance was confined
within the defendant’s premise. OTF, the papers flew over to Hilda’s property, blocking the
drain, causing flooding and property damage. The third requirement is satisfied.

viii) Fourthly, it has to be shown that the use of land was non-natural. Originally, this would be
satisfied as long as the use of land was a man-made activity (Rylands). However, domestic use
would not be regarded as ‘non-natural’. Use of land that meets a public need or is a national
necessity was also regarded as natural, such as the manufacturing of munitions during war time:
Read. However, where chemicals are used in a factory, this would be a classic example of non-
natural use: Cambridge Water. The fact that the factory generates jobs for the community and
is socially beneficial to the public is irrelevant: Cambridge Water overruling British Celanese
v A.H. Hunt. More recently, in Transco, the HOL redefined ‘non-natural use’ explaining that
only “extraordinary and unusual activities that carry with them exceptional risks of danger”
will be regarded as non-natural use. Lord Hoffman: further, if the claimant would ordinarily
insure against the kind of damage caused by the defendant’s activity, this would be a further
indication that the defendant’s activity was natural and not extraordinary or unusual. The
expectation of insurance on the claimant’s part as the appropriate means of protection against
the kind of loss suffered would further preclude a finding of non-natural use by the defendant,
thereby restricting liability and denying the claim. OTF the use of land may not be extraordinary
and unusual. Insurance against flooding is common. Thus, a natural use OTF.

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 ix) Lastly, any loss or damage suffered must have been reasonably foreseeable/ not too remote:
Cambridge Water, affirmed in Transco. OTF: damage is foreseeable and not too remote.

4) Ultimately, liability will not be established because the ‘non-natural use’ requirement cannot be
satisfied. In any event, Warhorse will rely on the act of God defence: windy night (Nichols v Marsland;
Greenock Corp.). Defence unlikely to apply, as papers flying over can be anticipated and prevented.
Ultimately, Warhorse will not be liable.

5) As a final alternative, Hilda may try to sue the council under private nuisance for the protestors’ activity,
causing property damage (flooding). All requirements above will apply and will be satisfied on the facts
(similar to Sedleigh-Denfield). Hilda has proprietary interest to sue and the council can be sued
(discussed above). Locality wise, the protest is unsuitable (residential area). Duration wise, the
interference was an isolated event (one-time escape causing flooding). However, even isolated
interferences may be unreasonable (serious, caused property damage: CRC v Kimbolton Fireworks).
There is no evidence in malice like Hollywood SFF. No abnormal sensitivity either. But because
property damage was caused like in Sedleigh, unreasonable interference will be established. Public
benefit is irrelevant: Barr. No defences will apply. The claim under private nuisance will succeed and
Hilda will be entitled to damages for property damage (damage not too remote OTF) and injunction to
stop the recycling activity by protestors: Coventry.

2012 (A & B) Q7:

Grinders Ltd has a plastics factory at the edge of a village. It has recently seen a considerable increase in
demand for its products and it has had to work late into the evening to meet demand. It has also installed
state of the art equipment. In 2010 Basil inherited a pub near to the factory. He was not interested in
running it, but he allowed his nephew Craig (who had trained as a chef) to open a small restaurant in the
pub. He does not charge Craig any rent. The restaurant initially attracted an increasing number of
customers, but they find the noise from Grinders’ factory very irritating and business at the restaurant
has dwindled. Basil says that he cannot be bothered taking any action about it. Grinders’ new equipment
often emits clouds of microscopic particles. These are invisible to the naked eye and are no danger to
human health. Adjoining the factory however there is a private airstrip owned by Daphne and used by
the local flying club. The aviation authorities have told Daphne that aircrafts must not take off or land
while the wind is blowing from the direction of the factory. No such problems have been encountered
elsewhere with the kind of equipment that Grinders has installed. The flying club has now found an
alternative airstrip and has terminated its arrangement with Daphne. Advise Craig and Daphne.

Answer guide:

1) Facts involve claims to be brought under private nuisance and the rule in R v F

2) Craig will sue Grinders under private nuisance for the noise from Grinders’ factory – it has caused him
to lose customers and his business has been affected as a result:

i) Claims that involve indirect and unreasonable interference to property or enjoyment by the use of
property by another can be brought under private nuisance: Winfield & Jolowicz. Since Grinders’
use of their factory indirectly interferes with Craig’s “enjoyment and amenity” of the pub, the claim
may be brought under private nuisance. As for the likely economic loss that flowed from the lack
of customers and business dwindling, if the Court accepts this as consequential loss resulting from
loss of enjoyment, then this would be recoverable. De Keyser’s Royal Hotel could also apply by

32
 analogy whereby it was held that the hotel’s business losses in this case, due to guests being unable
to sleep at nights because of the noise created by the defendant, were recoverable. Further in
Matania v National Provincial Bank, the claimant was unable to earn a living by conducting
singing classes at his property, due to high levels of noise created by the defendant’s activity. The
claimant was able to recover loss of income as a consequential loss.

ii) In order to claim under private nuisance, the claimant must have proprietary interest in land:
Malone v Laskey. Hunter; Sedleigh-Denfield. OTF: Craig doesn’t pay rent, the pub is owned by
Basil, thus, Craig does not have proprietary interest to sue. Alternatively, like claimants in
McKenna v British Aluminium, he may want bring an action under HRA 1998, for the
interference. However, he is unlikely to succeed as by contrast, Grinders is unlikely to be regarded
as a public body for the purposes of S6, and the disturbance experienced at the pub is unlikely to
amount to a violation of Article 8 ECHR like in McKenna.

iii) It also matters that the interference was unreasonable based on ordinary standards, taking into
account factors like locality, duration, malice, and sensitivity: Barr; Walter v Selfe. Also, the
interference has to be substantial and not fanciful: Hunter.

iv) Locality is important because what would amount to nuisance in one locality may not amount to
nuisance in another locality: Sturges. Yet, even if the locality is more suited to the defendant’s
activity but the interference is so serious as to cause property damage, unreasonableness will be
established: St Helen’s Smelting v Tipping. OTF: Grinders is operating at the edge of a village,
which is not unreasonable for a factory. Further, it is less likely that pubs are usually found at the
edge of a village. So, locality wise, Grinders’ activity may not be unreasonable. Further, no damage
to property has been caused so distinguishing from Sturges and St. Helen’s Smelting, in view of
the locality factor, the interference may not be unreasonable. The other factors will not assist much
on the facts. The claim will ultimately fail under private nuisance.

3) Since Craig will fail under private nuisance, he may want to try and recover business losses under public
nuisance. Blackstone: public nuisance is a crime and only the state can bring action to put an end to it.
However, any party who suffers special damage above and beyond the public nuisance itself may seek
remedy for the special damage separately under tort law: Esso Petroleum v Southport Corporation;
Benjamin v Storr. He must prove that the nuisance was public in nature: AG v PYA Quarries. The
effect must be “so widespread in range and indiscriminate in nature” to be considered ‘public
nuisance’: Lord Denning. OTF: it is unclear and unlikely that the effect was widespread since the
factory is located at the edge of the village – presumably not many homes around the village. This
requirement may not be satisfied. As for special damage, real, substantial and consequential financial
losses may be recovered if directly caused by the public nuisance: Benjamin v Storr, Tate & Lyle
Industries v GLC. OTF: Craig may be able to show special damage – business dwindling –
consequential economic loss. Even though there is evidence of special damage OTF, Craig will not be
able to recover damages because he will not be able to prove that the nuisance was public in nature.

4) Daphne would want to sue Grinders for business loss when the local flying club terminated its
agreement with her due to their inability to fly using the strip of land belonging to Daphne, because of
the interference in the form of microscopic dust particles from Grinders. The authority advised against
flights taking off and landing there, which suggests that the particles do amount to interference. Since
this is a case of substance moving from one premise to another, it can be classified as an interference
in the form of escape. Daphne may bring a claim under the rule in R v F.

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5) The rule laid down in Rylands by Blackburn J is: “anyone who brings and keeps on land for his own
purpose, anything likely to do mischief if it escapes, must do so at his own peril and if he fails to, he is
prima facie answerable for all damage that is the natural consequence of the escape.”

6) Later in Transco v Stockport MBC, Lord Bingham explained that the rule was sub-species of private
nuisance that deals with interferences in the form of escapes from land. As such, the claimant must
possess proprietary interest to sue as in Hunter, and claims are allowed only for property damage and
consequential financial loss but not for pure economic loss or personal injury.

7) In the circumstances, OTF, in order to claim, Daphne must show that she has proprietary interest. Since
she is the owner of the strip of land, she possesses the necessary proprietary interest to sue.

8) As to whether the type of loss is recoverable, it is doubted that the financial loss arising from the
termination of the agreement may not be recoverable as it is not a consequential loss. Consequential
economic loss is that which flows from some property damage (Spartan Steel; Murphy v BDC). Since
no property damage has been occasioned the financial loss in question will be considered purely
economic and will not be recoverable: Weller v FMDRI; Transco.

9) As for the conditions for liability, firstly, D must have accumulated something on land for his own
purpose. This is clearly satisfied on the facts. Secondly, the substance accumulated must be ‘capable of
causing mischief if it escapes’, i.e. it has to be a dangerous substance. Water in substantial volumes will
usually be regarded as a dangerous substance (Transco; Rylands), and the same goes for chemicals:
Cambridge Water v Eastern Counties Leather Plc. The facts suggest that the particles are not
dangerous to human health and that they have not caused problems when released in other places. This
may suggest that the particles may not be dangerous or capable of causing mischief in general. However,
the fact that the authority has asked that no flights should land or depart in the area because of the
particles implies that the particles must be dangerous. As such this requirement will be satisfied.

10) Thirdly, it has to be shown that there was an escape causing damage. In Read v J.J Lyons it was held
that no escape occurred where the movement of harmful substance was confined within the defendant’s
premise. OTF, the particles have clearly moved from Grinders’ premises to Daphne’s air strip. As such
the escape element is satisfied. However, the absence of property damage fails to satisfy the damage
requirement.

11) Fourthly, it has to be shown that the use of land was non-natural. In Transco, the HOL redefined ‘non-
natural use’ explaining that only “extraordinary and unusual activities that carry with them exceptional
risks of danger” will be regarded as non-natural use. Lord Hoffman: further, if the claimant would
ordinarily insure against the kind of damage caused by the defendant’s activity, this would be a further
indication that the defendant’s activity was natural and not extraordinary or unusual. A plastics factory
does not appear to pose an exceptional risk of danger and indeed cannot be considered to be an
extraordinary or unusual use of land.

12) Lastly, Daphne must prove that any loss or damage suffered was reasonably foreseeable: Cambridge
Water, affirmed in Transco. OTF: no damage was suffered. Further, the kind of problem faced is
unheard of in other places where the same equipment is used. Grinders would therefore use this to argue
that the loss suffered is not reasonably foreseeable, as indeed, there is also an absence of property
damage due to the particles.

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 13) It is concluded that ultimately, Daphne’s claim under the rule will fail as she has not suffered property
damage and will not be able to prove that any loss suffered was reasonably foreseeable. Further, the
fact that pure economic loss is not recoverable will further hamper her chances of recovery.

14) Alternatively, she may bring an action against Grinders under private nuisance, arguing that the
emanation of particles resulting in her inability to use the airstrip for its purpose, would amount to loss
of enjoyment and amenity value. Further, the business loss arising from the flying club terminating the
agreement may be argued to be a consequential economic loss, as argued above for Craig. Daphne will
be able to sue Grinders since she has the necessary interest in land and Grinders are the creators of the
nuisance. The requirement of unreasonable interference discussed above will similarly apply. In terms
of locality and duration, it is submitted that Grinders’ activity is unlikely to be considered unreasonable
because the locality is suitable for a factory and the interference occurs only when the wind blows.
Further, no property damage has been caused. The seriousness of the interference may not be sufficient
to warrant a finding of nuisance. Further, Grinders may allege abnormal sensitivity, stating that other
areas in which the same equipment has been used, has not faced the same issues faced in Daphne’s area,
presumably because there must be something abnormally sensitive about the air in Daphne’s area. If
this is accepted, the court is likely to conclude that unreasonable interference is not established:
Robinson v Kilvert; Network Rail Infrastructure v Morris. The consequences of the emanation on
Daphne’s airstrip would appear to be unforeseeable, thus abnormally sensitive based on the Morris case
and the present facts. As such, a claim in private nuisance is also likely to fail.

15) As a whole, both Craig and Daphne will fail to claim against Grinders.

2009 (A) Q8:

Fred is a tenant farmer living and working at Wuthering Farm, a large arable farm in a remote
agricultural area of Northern England. His landlord is Agricultural Entrepreneurs (North) Ltd.
Wuthering Farm supplies a large proportion of the potatoes sold to greengrocers in that part of the
country. Fred keeps a very large pile of manure, which is used to fertilise the soil in his fields once a year.
Fred’s neighbour, Kieran, lives at Merrymeadows Manor, which he bought six months ago. This property
had previously been derelict, but Kieran is converting it into a luxury country house hotel. However, his
plans are being jeopardised by Fred’s activities. The manure pile, which is only twenty metres from the
lawn at Merrymeadows Manor, creates a strong smell. Kieran considers that this smell is likely to offend
his guests, cause him to lose business and diminish the value of the house. The manure pile attracts rats,
which come into Kieran’s property, and eat the flowers in his decorative flower beds. Kieran considers
that the rats present a risk to the health of his family and guests. There is also a large oil drum on
Wuthering Farm, which has recently been discovered to have been leaking for several years. The oil has
seeped down through the ground into an underground watercourse. As a result, the ponds at Boris’s
neighbouring fish farm have been seriously contaminated. Evidence suggests that the leaking oil comes
from a minute crack caused many years ago by the workers who installed the tank. Kieran and Boris are
threatening to sue Fred and his landlord in nuisance and/or the rule in Rylands v Fletcher. Advise them.

Key points:

i) “Fred tenant farmer” – creator of nuisance, may be sued

ii) “Landlord is AEN” – landlords may be sued for nuisance created by tenants

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 iii) “WF supplies to large proportion of greengrocers in that part of the country” – high public benefit in
D’s activity

iv) “Large pile of manure” – source of the nuisance – interference in the form of strong smells – needs to
be discussed whether this amounts to unreasonable interference – Ds may argue that the luxury hotel
should not be set up so close to a farm – luxurious standards cannot be set in the area

v) “Remote agricultural area” – relevant to locality – may mean that the farming activity is not
unreasonable

vi) “Smell may offend guests” – acceptable as loss of enjoyment

vii) “Business loss” – may be argued as consequential upon loss of enjoyment

viii) “Diminish value of house” – not recoverable, pure economic loss

ix) “Rats destroy his flowers” – property damage – may mean that interference is serious and unreasonable

x) “Health risk” – not recoverable – personal in nature – may be raised under HRA 1998 instead

xi) “Kieran at Merrymeadows six months ago” – 20-year prescription defence will not apply

xii) “House previously derelict, now converted to luxury hotel” – change in use of property and character
of use – may mean that Ds can rely on ‘coming to nuisance’ defence

xiii) “Oil from oil drum on farm… leaking for years… seeped into soil… Boris’ fish farm seriously
contaminated” – Boris may sue Fred and his landlord under rule in R v F

xiv) “Evidence that leaking oil comes from minute crack… by workers who installed the tank” – no
knowledge on Fred/ landlord’s part – relevant to whether escape and damage reasonably foreseeable

xv) “Fault of workers” – can also be argued under defence of act of third party, under R v F liability

xvi) Public nuisance not relevant on facts, no widespread effect

2009 (B) Q8:

A charitable company, Second Chance Ltd. has recently opened Eskdale, a residential home for ex-
offenders, in a large house at the center of Brownville, a small commuter village. The company has
planning permission for this use of the property. The first residents at Eskdale are all men who have
served lengthy period of imprisonment for very serious crimes. Local residents fear that these residents
will cause personal injury and damage in the village at some point, although no such injury or damage
has yet occurred. Last month, the company held the annual Second Chance Ball at Eskdale. This caused
significant problems for the other residents of Brownville. For a weekend, roads within the village were
very congested and residents found difficulty in driving in and out of the village. Furthermore, on the
night of the Ball, music was played at high volume, disrupting the sleep of Brownville residents. The
company has obtained planning permission for, and erected, a wind turbine to generate electricity for
Eskdale. When the turbine is running, it produces a very high-pitched sound which is imperceptible to
humans, but is very disturbing for dogs. Roderick’s boarding kennels have lost a great deal of business

36
as a result. Last week during a storm, one of the blades of the turbine blew off and landed on the home
of Janice, a resident of Brownville. As a result, Janice suffered serious injuries. Scientific investigations
have failed to discover the cause of the accident. The construction, assembly and maintenance of the
turbine appear to have been in accordance with most advanced practice. Consider whether the above
facts disclose any potential actions in nuisance and/or under the rule in Rylands v Fletcher.

Suggested answer (1442 words):

The issues that arise on facts are: (i) whether the residents of Brownville may bring an action for the
fear of injury and damage by the residents of Eskdale; (ii) whether the residents may bring action for the
congestion and loud music in the village during the weekend of the Ball (iii) whether Roderick may claim for
the business loss to its dog boarding kennel and (iv) whether Janice may claim in respect of damage and injuries
caused by the turbine blade that landed in her property during the storm. All potential claimants are advised to
sue SC as the creator of nuisance. Roderick and Janice, all of whom seem to own the properties affected by SC
would meet the requirement of proprietary interest to sue.

The residents of Brownville clearly have not sustained any injuries or property damage thus far, but
they fear the ex-offenders will harm them or their property. The annual ball also threatened their peaceful and
quiet enjoyment of property (road congestion and loud music). These may give rise to a group action for private
nuisance. Provided they all have proprietary interest, they may claim against SC (Hunter). The residents would
insist that living close to ex-offenders of very serious crimes interferes with the peace and comfort of living in
Brownville in that criminal behavior could recur when ex-offenders start to assimilate with society again and
the residents of Brownville are potential victims. In Laws v Florinplace and Thompson-Schwab v Costaki it
was held that a brothel and a sex shop both did interfere with neighbours’ peaceful and quiet enjoyment as both
were “offensive sights”, lowered the tone of the place and created a feeling of unease. But by contrast, SC is a
charitable company, and are helping to rehabilitate the ex-offenders by putting them back on the path of
normalcy amidst regular community life. No indecency or offensive conduct is evident just by virtue of their
presence there. Any alleged fear, distress, discomfort or annoyance from the inhabitation of ex-criminals in
Eskdale, would not be recoverable under private nuisance. There is no loss of enjoyment here: Hunter. The
noise and congestion during the weekend may, however, constitute actionable nuisance as they interfere with
quiet enjoyment of property.

Barr provides that in determining whether an interference was unreasonable, the test is simply, ‘what
an ordinary person could be expected to put up with’. This is to be decided by reference to all relevant
circumstances of the case. There has to be some real interference according to the standards of the average man
and not according to the standards of dainty living. In Sturges v Bridgman it was held that what would amount
to a nuisance in one place may not in another. Further in Baxter v Camden LBC it was held that residents of
low cost, high density housing are expected to put up with higher noise volumes. Brownville is a commuter
town. The residents of Brownville probably spend a lot of their time away from Brownville and may be expected
to put up with SC’s use of land. SC would argue that the character of the locality is different now, upon the
grant of planning permission to set up Eskdale, and that the residents of Brownville must accept the change:
Gillingham BC v Medway Dock. Further, SC may try to rely on the argument of ‘public benefit’, stating that
they are a charitable company trying to do good for ex-criminal offenders. SC would argue that it is necessary,
as part of rehabilitating ex-offenders, that they reside among ordinary members of society, and participate in
communal living so that they gain interaction and integration into society, and move away from their past life
of crime. In the process, annual celebrations are only healthy and harmless, and it may be argued in the interest
of public policy, that courts should be lenient and not find SC liable in nuisance. If liability is imposed, charitable
organisations such as SC would be discouraged from doing what they do. In Barr, it was held that public benefit

37
in the defendant’s activity cannot be allowed to prevail over the private individual’s enjoyment of property
where the activity is a serious interference. On the facts, the interference is not serious, only feared and not
actual. The ball too is only an annual affair and no property damage was caused in the process. Contrasting with
Crown River Cruises v Kimbolton Fireworks, private nuisance may not be established here.

Roderick is also advised to sue SC under private nuisance for the high-pitched sound affecting his dog
boarding business. He has the necessary interest in land to sue. Roderick too will have to establish the
requirement of unreasonableness discussed above. SC will argue that Roderick’s property is “abnormally
sensitive” and therefore that the wind turbine has not caused any unreasonable interference to Roderick’s use
and enjoyment of his property. On the facts, the high-pitched sound from the wind turbine is imperceptible for
humans, but unbearable for dogs. In Hollywood Silver Fox Farms v Emmett, despite the fact that silver foxes
are sensitive in nature to loud sounds, the court found that unreasonable interference was established because it
was maliciously caused. In NRI v Morris, the claimant could not establish unreasonable interference in respect
of electromagnetic waves from the defendant’s signaling system because such interference was unreasonable,
given the sensitive nature of electric guitars used by the claimant. Since the wind turbine only affects dogs, it
may not constitute unreasonable interference.

Janice is advised to pursue damages for property damage under the rule in R v F. The incident of the
turbine blade flying over was an isolated escape of a dangerous thing from SC’s. To establish liability under the
rule, she would have to prove: (i) accumulation of a harmful substance on the defendant’s premise for his own
purpose; (ii) that the thing accumulated was dangerous; (iii) that there had been an escape causing damage, (iv)
that this was the result of a non-natural use of land and (iv) that damage was reasonably foreseeable and thus
not too remote. (R v F; Cambridge Water). It is submitted that the first three requirements are easily satisfied,
i.e. the setting up of a wind turbine on SC’s premise amounts to accumulation, the blade from the turbine is
certainly a dangerous instrument and there clearly has been movement of the blade from SC’s place into Janice’s
place (Read v Lyons). As to whether SC’s use of land was non-natural, Transco suggested that the question to
be asked was whether the defendant engaged in an activity that carried extraordinary and unusual risks of harm.
It is submitted that installing a wind turbine in a residential area, even if it was to generate power an energy for
Eskdale is excessive and the risk of the blade flying off and causing damage to neighbouring property is certainly
an extraordinary one. Wind turbines are usually used on for larger scale activities where the generation of higher
volumes of energy for bigger operations than a home like Eskdale. Thus, non-natural use of land will be
established here.

Next Janice will have to establish that the damage sustained was reasonably foreseeable and thus not
too remote (Wagon Mound (No. 2) (1967)). SC will probably argue that blades don’t ordinarily fly off to
neighbouring properties and that the kind of damage that occurred was rare and more of an unexpected
occurrence. It may be that the damage sustained by Janice would be found to be too remote. The facts also state
that scientific investigations have failed to discover the cause of the accident. The construction, assembly and
maintenance of the turbine appear to have been in accordance with most advanced practice. In the
circumstances, the damage will not be deemed foreseeable. SC too may argue ‘act of God’ as a defence, on the
basis that it was the storm that ultimately caused the blade to be blown off. In Greenock Corporation v
Caledonian Railway (1917) the defendant was found liable under the rule in R v F for flooding caused by heavy
rainfall, because it was known and foreseeable that heavy rainfall would result in the kind of flooding that
occurred. By contrast here, however it is submitted that it is probably quite uncommon and unforeseeable that
a turbine blade may be blown away by a storm and as such the defence of ‘act of God’ would probably result
in SC not being found liable under the rule in R v F. In conclusion, it is submitted that it is highly likely that all
claims will fail under private nuisance and the rule in R v F.

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2008 (A) Q5:
Thor Industries manufacture specialist military equipment at their factory, which is situated in a
residential area. Because of the need to manufacture and test increased supplies to meet current military
needs, they have often worked through the night, causing considerable noise and vibration. Faisal, the
owner of a house nearby, is severely disabled but has been trained to use specialist electronic equipment
to work at home dealing with enquiries from customers of National Savings. Testing of new products at
the Thor factory sometimes interferes with this equipment and Faisal fears that he will not be able to
carry on working. A large group of anti-war protestors has taken over a piece of land belonging to the
local council, the Paxtown District Council, near the factory. They have been cooking food on the site,
throwing rubbish into neighbouring gardens as well as shouting protests. The Paxtown Council is
opposed to British military activities and has taken no steps to remove the protestors. Advise as to any
possible nuisance actions.

Suggested answer (1178 words):

Faisal may bring an action under private nuisance against Thor Industries (‘TI’) for the considerable
noise and vibration and the interference to his equipment and inability to work. TI and others affected by the
large group of protestors may also bring an action against the Paxtown District Council (‘PDC’) for private
nuisance.

Private nuisance is defined as the “unlawful, unreasonable or wrongful interference with one party’s
use and enjoyment of land by another’s use of land”: Sedleigh-Denfield v O’Callaghan (1940). The law deals
with claims for indirect interferences in the form of either (i) encroachment on land, (ii) property damage or
(iii) interference with enjoyment of land. The claimant requires proprietary interest to sue: Hunter v Canary
Wharf. On the facts, Faisal is unable to enjoy his property because of the noise and vibration from TI, and to
use his special equipment. These arguably amount to amenity and/or enjoyment loss, although TI may argue
that the inability to use the special equipment is “not a right obtained from possession of land” and that
interference with the same was not “substantial”, but fanciful instead (Hunter). But Faisal’s situation must be
distinguished from Hunter. On the facts, Faisal is disabled and is trained to use specialist electronic equipment
to work at home dealing with enquiries from customers of National Savings. The use of the equipment is not
for a “fanciful” and the right to work from home using specialist equipment due to disability is arguably a right
that does arise from possession of land in the circumstances. As such, the interference with the work equipment
would also fall within ‘loss of enjoyment’ and is actionable under private nuisance. Faisal also possesses the
required interest to sue since he owns his property.

Next, Faisal has to satisfy the requirement of ‘unreasonable interference’. It was held in Sedleigh-
Denfield that “a balance has to be maintained between the right of the occupier to do what he likes with his
own property, and the right of his neighbour not to be interfered with. Barr v Biffa Waste Services re-introduced
the Walter v Selfe test: “what an ordinary person could reasonably be expected to put up with... which is to be
decided by reference to all the circumstances of the case...”

Whether interference is serious enough to amount to unreasonableness, is usually measured in light of

certain factors. Firstly, courts examine the locality in which the interference in ongoing: Sturges v Bridgman.
The facts state that TI is located in a residential area. In Coventry v Lawrence the SC held that the high noise
levels and vibrations from the Defendant’s motor racing stadium amounted to nuisance in a location where a
residential bungalow was closely situated. Here, the noise and vibration from TI’s premises would most likely
be found unreasonable likewise. Courts also examine the duration and timing of the interference. Nuisance that
prolongs continuously is usually regarded as unreasonable, however, even a short term may be deemed

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unreasonable if it is sufficiently serious: Barr. Further, in De Keyser’s Royal Hotel v Spicer Bros. (1914) it was
held that construction work that went on throughout the night was unreasonable because residents could
reasonably expect that time of day to be quieter, so as to not interfere with peaceful sleep. The work at TI that
goes on throughout the day and into the night would definitely be found unreasonable.

TI would also argue that the public benefit in their activity should render their use of land necessary
and therefore, not unreasonable. TI manufactures specialist military equipment to meet current military needs,
presumably, war-related defence equipment. However, in Barr, it was held that the public utility and benefit of
the defendant’s act is irrelevant to the question of unreasonableness. As long as the interference occasioned is
unreasonable and serious, nuisance is established. However, TI would raise the ‘abnormal sensitivity’ factor in
respect of the special equipment used by Faisal. In Network Rail v Morris (2004), claim failed because the type
of electric guitars used by the claimant was found to be extraordinarily sensitive and thus, that the
electromagnetic waves from the defendant’s property was unforeseeable and could not be considered
unreasonable. TI would argue that Faisal’s equipment is similar. It is presumed from the facts that the
interference will not occur with the use of any other ordinary equipment. Even though the use of the equipment
is essential, it is likely that the interference will not be found unreasonable. Faisal’s action will therefore fail.

TI and any party affected by the protest has also arguably suffered interference to the enjoyment of their
property in the form of noise and rubbish being littered around; thus, may claim under private nuisance. TI will
meet the proprietary interest requirement as it owns the factory affected by the protestor nuisance. TI would
pursue its action against PDC as owner of the land from which nuisance emanates, even though the nuisance
was created by the protestors. The PDC was aware of the protest but is opposed to British military activities and
so, has taken no steps to remove the protestors. In Sedleigh, it was held that “some degree of personal
responsibility” is sufficient to impose liability. Further, in Lippiat v South Gloucestershire County Council
(1999), it was held that the Council could be liable for nuisance caused by gypsies occupying the Council’s
land, where the Council permitted them to do so, and whether the land was used as “launching pad to commit
nuisance.” Further, in Coventry the SC held that landlords, and those who authorise the use of their land by
others, may be liable for any nuisance arising from the use of land, if there was evidence of active and direct
participation on their part. Applying Lippiat and Coventry, it is clear that PDC did authorise, endorse and allow
the protest to continue. The PDC did not intervene deliberately, because it is opposed to British military
activities. Thus, they may be held answerable.

It must also be shown that the protest did result in unreasonable interference. Taking into account some
of the factors listed above such as locality, duration, and public benefit, it is submitted that the protest would
amount to unreasonable interference. The protestors have been cooking food on the site, throwing rubbish into
neighbouring gardens as well as shouting protests. This arguable is serious and would amount to unreasonable
interference. This is comparable to the level of nuisance in Lippiat, which the court found to be unreasonable.
As such, the requirement of unreasonableness will be satisfied on the facts.

As for any defence that the PDC may rely on, it is submitted that none of the defences will apply on the
facts. Therefore, the claim against PDC for nuisance caused by the protestors will most likely succeed. The
appropriate remedy will be injunction and any party affected by the protest will be prima facie entitled to the
injunction upon proving unreasonableness, as established above (Coventry).

In conclusion, Faisal’s claim will fail while TI and other affected by the protest may successfully obtain
an injunction to stop the protest.

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2008 (B) Q5
Shoddy Industries have a factory located in an area of low cost local authority housing. Because of
increased demand for their products they have had to extend their working hours. Thick fumes from the
factory often blow across the estate and residents and that they have to keep their windows closed. Two
children living on the estate suffer from asthma and their condition has deteriorated. Residents have
started displaying banners denouncing Shoddy Industries and shouting abuse through loudhailers. In
order to protect their workers Shoddy Industries have erected a giant screen between their factory and
the estate. As a result, many residents are now unable to use their sophisticated mobile phones and some
are unable to gain access to the internet. Discuss any possible claims in nuisance.

Key points to note:

i) “Factory located in area of low cost local authority housing area” – relevant to ‘locality’ when
discussing whether the interference by Shoddy Industries is unreasonable

ii) “Extended working hours” – relevant to ‘duration’ when discussing whether interference is
unreasonable

iii) “Thick fumes from factory… residents have to keep windows closed” – this is the interference – needs
to be established whether this is unreasonable and amounts to private nuisance. Also, “thick fumes”
will come under “enjoyment loss” – a type of loss that is recoverable under private nuisance

iv) “Residents” – these are the claimants under private nuisance – each one is indirectly and privately
affected, so each one may claim under private nuisance. Also, they would have the proprietary interest
to sue.

v) “Shoddy Industries” – this is the defendant – creator of nuisance

vi) “Two children… asthma & condition deteriorated” – they would want to claim under private nuisance
too. However, they don’t have proprietary interest and asthma would come under personal injury – not
recoverable private nuisance – alternatively may sue under HRA 1998, violation on Article 8 ECHR

vii) “Residents denouncing Shoddy… shouting through loud hailers” – Shoddy may complain that this
amounts to private nuisance – interference to their use and enjoyment of land and it is malicious –
however an action is unlikely because Shoddy is still able to carry on operations. This may not be
brought under public nuisance because the effect of residents’ action is not widespread and only targeted
at Shoddy. For it to amount to public nuisance the effect has to be indiscriminate.

viii) “Giant screen between factory and estate… residents unable to use sophisticated phones and unable to
gain access to internet” – those affected will want to sue under private nuisance specifically for this as
well. They may sue and may be able to satisfy the necessary requirements, but whether the type of
interference amounts to “loss of enjoyment” needs to be debated. Also, it needs to be evaluated whether
Shoddy may argue that the inability to use certain phones and gain access to internet for some, points
towards the abnormal sensitivity of their devices, since not all face the problem.

ix) Alternative discussions: the residents may group all of their complaints together (fumes and interference
with phones and internet) under one general allegation of public nuisance. If the effect is widespread

41
 enough, then the asthma (2 children) and interference with devices and internet may be argued as special
damage resulting from public nuisance.

x) The children who suffer deterioration of asthma condition may alternatively sue under negligence –
personal injury is recoverable under negligence (no need for detailed discussion on all elements, but
just to identify negligence as an option)

xi) None of the claims can be brought under the rule in R v F because there is no damage to property

xii) Consider, if liability can be established for private nuisance, whether any defences may apply

xiii) Consider the appropriate remedy, if claims succeed

ESSAY QUESTIONS

2017 (A) Q7:

Evaluate the approach of the courts in resolving conflict over competing uses of land in private nuisance.

Answer Guide:

Introduction:
“Competing uses” – refers to the different use of land between neighbours/ neigbouring properties – one party’s
use of land may interfere with his neighbour’s use/enjoyment of land
• “The approach of the court” – private nuisance law – criteria upon which conflicts are resolves
• The age-old approach: to carry out a balancing exercise – whether a party’s use of land results in an
unreasonable interference to the other
• At its core, private nuisance law spins on the axis of “unreasonableness” – resolution of conflicts rests
on this single criterion – answer will focus largely on this test of unreasonableness
• Other ancillary issues are relevant too, such as the appropriate remedy, defences & rights to sue

Discussion:
1. Private Nuisance (PN):
• Defined as the unreasonable/unlawful interference with another’s use and enjoyment of land – Winfield
& Jolowicz
• Walter v Selfe, Sedleigh-Denfield v O’Callaghan (1940): “A balance has to be maintained between
the right of the occupier to do what he likes with his own, and the right of his neighbour not to be
interfered with. It is impossible to give any precise or universal formula, but it may broadly be said that
a useful test is perhaps what is reasonable according to the ordinary usages of mankind living in society,
or more correctly in a particular society.”
• The unreasonableness test is derived from Sedleigh-Denfield and Walter v Selfe represents the
approach taken by courts

2. “Unreasonableness” – development of test:

• Hunter v Canary Wharf (1997): “where special damage is caused to particular persons having landed
interest through an unreasonable interference to their quiet and peaceful enjoyment of land”
• Barr v Biffa Waste Services (2012): “No general rule requiring or justifying the setting of a threshold
in nuisance cases… the test is simply what an ordinary person could reasonably be expected to put up

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 with… For any nuisance, there is no absolute standard, it is a question of degree whether the
interference is sufficiently serious to constitute a nuisance, which is to be decided by reference to all
the circumstances of the case… There must be a real interference with the comfort or convenience of
living, according to the standards of the average man i.e. "… not merely according to elegant or dainty
modes and habits of living, but according to plain and sober and simple notions among the English
people”
• Southwark LBC v Mills (1999): balancing exercise - courts must balance competing interests of
property owners in view of certain factors and then decide whether the interference is unreasonable

2. Factors:
Judges use certain factors to determine whether the interference was unreasonable:

(a)Locality:
• Barr: the character of the neighbourhood must be taken into account
• Sturges v Bridgman (1979): “What would be a nuisance is Belgravia square would not be so in
Bermondsey” Locality at present - service-type commercial entities & medical practices – D’s
interference unreasonable – Cl.’s practice was the norm
• Baxter v Camden LBC (2001): “occupiers of low cost, high density housing must be expected to
tolerate higher levels of noise from their neighbours”

(b)Planning Permission:
• Gillingham BC v Medway Dock (1993): planning permit may alter character of locality from residential
to commercial (large scale alteration) – interference by D no longer unreasonable
• Wheeler v JJ Saunders (1996): planning permit did not alter character of locality – small scale – D’
farming unreasonable
• Coventry: planning permit given here did not completely alter the character of the locality from
residential to sporting but changed the character of the locality to include racing activities. Nonetheless
D’s activity would still be found unreasonable against the backdrop of the current locality because it
could not be carried out without causing nuisance. NOTE: Coventry changes the way planning permits
influence the issue of locality.

(c)Duration:
• De Keyser’s Royal Hotel v Spicer Bros. (1914): the longer and more frequent the interference, the more
likely that it would be an unreasonable interference and a nuisance
• British Celanese v A.H. Hunt (1969): One-off/isolated interference (as opposed to ongoing) could also
be found unreasonable
• Crown River Cruises v Kimbolton Fireworks (1996): 15-20 minutes each time but high level, serious,
dangerous interference deemed unreasonable

(d)Malice:
• Christie v Davey (1893), Hollywood Silver Fox Farms v Emmett (1936): D was intolerant and
disturbed Cl. on purpose to annoy and interfere with Cl.’s activities – deemed unreasonable

(e)Abnormal sensitivity:
• Robinson v Kilvert (1889): interference by D not deemed unreasonable given the highly & abnormally
sensitive nature of Cl. use of land
• McKinnon v Walker (1951): noxious fumes where harmful to all plants and not just Cl.’s rare orchids
– unreasonableness established

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(f) Seriousness of interference:
• Crown River Cruises v Kimbolton Fireworks (1996): interference caused damage to Cl. property –
with burning debris landing on Cl.’s property setting it on fire – interference very serious – unreasonable
• St Helen’s Smelting v Tipping (1865): D’s interference which caused actual property damage (leaves
turning yellow due to copper fumes from D’s factory - would be deemed unreasonable

3. Other issues (Briefly):

• If the claimant is seeking damages – fault needs to be established: Cambridge Water; Wagon Mound
(No.2)
• If the claimant is suing a non-creator (occupier/ landlord) – fault needs to be established in the form of
knowledge & failure to take action to avoid nuisance or active & direct participation: Sedleigh-Denfield
v O’ Callaghan; Lippiat v SGC (1999); Coventry v Lawrence (2014)
• If the defendant has statutory authority, this may favour the defendant: Barr
• If the claimant failed to take action or object to the interference for as long as 20 years, the court will
favour the defendant: Coventry
• The claimant has to prove special damage – damage to property or interference to enjoyment: Coventry
(noise & vibration); Sedleigh-Denfield (flooding)

Analysis
• Courts are guided largely by different factors – the test of unreasonableness is highly subjective – courts
use this requirement to ensure that the individual’s common law right of enjoyment is protected (Barr)
• Is this fair? Is it an effective way to control nuisance & resolve disputes?
• Using this single criterion – doesn’t require proof fault – fault is irrelevant – as long as interference was
unreasonable, it doesn’t matter whether D took reasonable care to contain nuisance
• Comparing with negligence – it is harder to establish negligence – fault is required – D has to fall below
a particular reasonable std. whereas in nuisance there is no set std. – there is no equivalent of the ‘breach’
criterion in nuisance

2017 (O) Q6:

Is the tort of nuisance an entirely independent tort or should it be regarded as a branch of the tort of
negligence?

Answer guide:

The question relates to the tort of private nuisance, in particular whether it may be regarded as a branch of
negligence or a separate tort in its own right. In answering the question, (i) the purpose of private nuisance, (ii)
characteristics of private nuisance, (iii) the manner in which liability is established and (iv) the requirement of
legal interest to sue will be discussed. In discussing these aspects of private nuisance law, the candidate will
draw contrasts and comparisons between negligence and private nuisance, in order to support the conclusion
that private nuisance is indeed a separate tort, independent from negligence.

Relevant points to be discussed and analysed:

§ It must first be recognized that private nuisance is a species of tort that emerged before negligence, with
private nuisance claims being heard and decided long before the birth of negligence as a distinct tort in
1932: Walter v Selfe (1851)

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§ Purpose of private nuisance: to protect interest related to land – to uphold a person’s right to live free
from interference to land and to protect property from damage: Hunter. By contrast, negligence is
concerned with protecting personal interests – to allocate responsibility for harm/loss/damage caused
by lack of care: Donoghue v Stevenson. Although both areas of law require proof of damage, the types
of damage protected are different: negligence – death, personal injury, property damage, consequential
losses, and in exceptional circumstances, psychiatric injuries and pure economic losses. Private
nuisance protects only damage to land/property, interference to enjoyment of land and consequential
losses. (Note: distress and discomfort alone are not recoverable under both torts). Cane in “What a
Nuisance!” asked: why a party who had the necessary interest in land and suffered the relevant type of
damage covered by private nuisance would not be able to sue in negligence. Lunney & Oliphant
respond: “the law has not felt the need to extend the general duty of care (in negligence) to include a
duty not to cause interference to enjoyment of property.

§ Characteristics of private nuisance: liability is strict in nature – does not depend fault, whereas
negligence is a fault-based tort.

® Liability is strict – Cl. only has to prove unreasonable interference (no need to prove fault) - Sedleigh-
Denfield v O’Callaghan (1940)

® Professor Newark in the Boundaries of Nuisance (1949): private nuisance was historically a tort of
strict liability

® Whether or not the D’s activity amounts to private nuisance is a question of fact, and judges look at
certain factors in answering this question. Fault is irrelevant for liability: Walter v Selfe (1851); Lunney
& Oliphant.

® Lord Goff in Cambridge Water Co. Ltd. v Eastern Counties Leather Plc. (1994): …where a nuisance
has been created… it is still the law that the fact that the D has taken all reasonable care will not of itself
exonerate him from liability.

® In Goldman v Hargrave (1966), D was liable in negligence for his failure to put out a fire that had
spread to the Cl.’s property – this was based on the argument that a reasonable person would have taken
greater precaution (fault relevant). But no liability arose for private nuisance because the defendant is
not expected to come up to any reasonable standard in terms of how he acted. Nuisance focuses on the
gravity of interference and not the way the defendant acted. Thus, where the fire was due to lightning,
the defendant could not be liable under nuisance.

® Lord Goff & Lord Reid in Cambridge Water: claimant does not need to show that the D failed to take
reasonable care in carrying out an activity on land - claimant does not need to show “negligence in the
narrow sense”. These views reaffirm the notion that liability is strict

® Negligence on the other hand depends on fault: Donoghue v Stevenson, Blyth v BW.

§ The manner in which liability is decided under private nuisance differs from how liability is established
under negligence:

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® Private nuisance turns on ‘unreasonable interference’ while negligence depends on duty, breach,
causation and remoteness.

® There are arguments that the unreasonableness requirement in private nuisance mirrors the ‘falling
below the reasonable standard of care’ in negligence – both discuss factors (compare factors used in
negligence breach discussion and private nuisance unreasonableness discussion)

® However, in Barr v Biffa, Carnwarth LJ: reasonable use of land in private nuisance is not the same as
reasonable care in negligence. If the D in a negligence action reasonably miscalculated the level of harm
he is allowed to inflict on his neighbour this would be relevant to the issue of breach of duty of care.
However, it would be irrelevant in private nuisance because fault is irrelevant – as long as the D’s
activity was unreasonable interference, he would be liable. (Level of unreasonableness matters in
negligence but not in private nuisance)

® Further, a negligent wrong is actionable only where there was a legal duty of care not to cause harm.
This is a pre-requisite of liability in negligence. The same does not apply for private nuisance

® Negligence also requires proof of causation

§ Legal interest requirement – no such pre-requisite to sue under neligence:

® Hunter & Others v Canary Wharf Ltd. (1997), HOL:
ü Only one who has interests in land (exclusive possession of land) should have the right to ask for
an injunction against another who also has interests in land – private nuisance focuses on the
balance between proprietary interests (Lord Goff)
ü Because the tort protects against interference with enjoyment of land (Lord Goff)
ü Nuisance is a property/land related tort (Lord Hoffman)
ü If private nuisance is divided into (i) property damage; and (ii) disturbance to enjoyment of land,
then it may be right to say that proprietary interest is required only when suing for property damage
and not for disturbance. However, to divide private nuisance this way is a mistake. Nuisance
causing disturbance in enjoyment of land AND nuisance causing property damage BOTH fall
under ‘damage to land’. Once this is understood, “the rule that the plaintiff must have an interest
in land falls into place is logical and indeed inevitable.” (Lord Hoffman)

® An unreasonable interference in land or an escape from land that causes damage is only actionable
where the Cl. has proprietary interest in land/exclusive possession in land. By contrast, this requirement
need not be fulfilled when claiming in negligence

§ However, some argue there are similarities between the two torts:
® There are times when private nuisance requires proof of fault in order to establish liability

® When the D is being sued for nuisance caused by 3rd parties, it may be argued that “liability in private
nuisance mirrors that in negligence”. Liability for nuisance caused by 3rd parties is based on fault
(knowledge on the D’s part and failure to act). Sedleigh-Denfield: “where an occupier knows of
something offensive on his land caused by a third party/trespasser and fails to abate it – liability can
be said to be fault-based”

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 ® Because of this, Lord Walker in Transco stated: “the territory of private nuisance overlaps with that
of negligence”.

® Lunney & Oliphant: whether or not liability is strict or fault-based depends on the type of remedy
sought: injunction or damages. Lord Goff in Cambridge Water: “Where an injunction is sought, the
question of fault is irrelevant but where damages is sought, fault needs to be proven by proving
foreseeability of damage. Citing Wagon Mound (No. 2) stated: “Wagon Mound (No.1) has settled the
law to the effect that foreseeability of harm is indeed a prerequisite of the recovery of damages in
private nuisance.” Lord Reid in Wagon Mound (No.2) (1967): “although negligence may not be
necessary, fault of some kind is almost always necessary and fault generally involves foreseeability”. –
This, arguably blurs the distinction between the two torts – at times, some degree of fault is needed to
establish liability for private nuisance

® Lunney & Oliphant: D will only be liable to pay damages, for harm that he could foresee. This might
be construed as a form of fault-based liability. If the D carries on an activity which he knows/can foresee
would cause damage, he is at fault/to be blamed.

2015 (A) Q1:

‘The Rule in Rylands v Fletcher (1868) is simply one aspect of the general tort of nuisance.’ Discuss.

2010 (B) Q5:

‘There is no compelling reason for retaining the rule in Rylands v Fletcher as a separate and distinct
tort.’ Discuss.

Suggested Answer:

The quote in question pertains to the rule on tortious liability for escapes from land, formulated in the
case of Rylands v Fletcher (1868). What is implied is that the rule serves no fruitful purpose as a distinct
concept. The contention implied in the statement in question is that the rule adds nothing new that is not already
adequately covered by the principles of private nuisance law.

The rule in Rylands v Fletcher dates back to the Industrial Revolution, and was intended to provide
redress for damage caused by increasing industrialization. According to Blackburn J, the rule in Rylands v
Fletcher comes into play when a person brings onto his land, something which is likely cause harm to a
neighbouring land if it escapes. Liability will follow where such accumulation on land results in damage to
surrounding environment and property. There is further debate as to whether the rule is still needed following
judicial comments as to its nature and its abolition in Australia. Judges have identified numerous instances in
which the application of the Rule overlaps with that of private nuisance and negligence. Also, judges have
pointed out that the rule has only been used very rarely, and most of the time, the principles of private nuisance
have been sufficient to determine liability for damage arising out of hazardous use of land. Notwithstanding,
the House of Lords in Transco plc v Stockport Metropolitan BC (2004) maintained that the rule still has a role
to play.

Traditionally, Rylands was considered to impose strict liability but over the years, elements of fault-
based liability have been introduced (Cambridge Water v Eastern Counties Leather Plc. (1994)). In terms of
its characteristics, the rule has been described as being a “subset of private nuisance” and as such, it bears the
same characteristics as private nuisance. The rule applies in relation only to land-related interests and it follows
that any party seeking redress would have to possess proprietary interest to sue. Claims are only allowed for

47
property damage or interference to use and enjoyment of land, and personal injuries are not recoverable
Transco.

For liability under this rule, the defendant had to have accumulated something on its land which
amounts to a non-natural use of the land. Anything that was present on the land through natural means would
not attract liability: Giles v Walker. Originally, only special use which brought increased danger and not use
which is proper for the general benefit of the community, would be capable of liability under the rule: Rickards
v Lothian. As the years progressed, interpretation of what would constitute ‘non-natural use’ grew more
ambiguous and there were noticeable signs of judicial inconsistency. For instance, in British Celanese v A.H.
Hunt it was held that accumulation of aluminum foils on the defendant’s factory premise was not an unnatural
use of land since the factory created jobs for the community. And the manufacturing of munitions and arms was
natural during wartime: Read v Lyons.

Lord Bingham in Transo later held that it was preferable to apply a test of extraordinary and unusual
use, considering the time and place. Lord Hoffman suggested, “A useful guide in deciding whether the risk was
created by a “non-natural user” of land is to ask whether the damage which eventuated was something against
which the occupier could reasonably be expected to insure himself…” It was suggested that if the particular
damage was insured, then it would most likely follow that the use of land that caused that damage could not
have been extraordinary, unusual or unnatural. The candidate however submits that there are doubts as to the
usefulness of this guide today. Most insurers of industrial damage are prepared to offer coverage for all kinds
of damage that may arise, in exchange for higher premiums. Very few types of damage are uninsured today, and
as such fewer types of damage would constitute “non-natural use” on the defendant’s part today. The kind of
situations envisaged by Blackburn J to fall within the scope of the rule would today easily escape liability. What
would once be a hazard to the environment or the neighbour’s property is highly likely to be accepted as a
natural occurrence on land today. Industrialization is unstoppable and is more of a norm/necessity today than
ever before. The rule in R v F is not particularly helpful anymore.

The thing accumulated also has to be capable of causing mischief if it escapes. ‘Escape’ was defined
as, ‘‘movement of the harmful substance from a place where the defendant has occupation or control over to a
place outside his occupation or control’’: Read v Lyons (1947). Next according to Lord Goff in Cambridge
Water, only foreseeable harm would be recoverable, as, “…it is difficult to see why in common justice, a claimant
should be in a stronger position to claim damages for interference to land where the defendant was unable to
foresee such damage.”

Lord Bingham in Transco described the rule as a sub-species of private nuisance, explaining that the
rule has its origins in nuisance. In R v F itself, the claimants relied almost exclusively on authorities from the
law of nuisance. Lord Hoffman in Transco pointed out that the advocates in Transco could not find any reported
case since the second world war in which anyone had succeeded in a claim under the rule. In truth, the rule in
R v F is simply a reiteration of the essence of private nuisance in circumstances involving isolated escapes:
Lord Goff in Cambridge Water. It ensued that in Cambridge Water, His Lordship refused to elevate the rule to
the status of “independent principle of law” for extra hazardous activities, arguing that such liability has not
been established as a general legal theory even in the USA. This marked the moment when the distinctiveness
of the rule in R v F was doubted, by associating it with private nuisance. Murphy and Nolan in 2005 summed
up this line of thinking and concluded that the only thing unique about the rule was that it was capable of
affording liability in cases where there was a one-time escape from land. However, this is overshadowed by the
fact that the tort of private nuisance is also capable of affording liability in similar circumstances. In British
Celanese, it had been pointed out that there was no bar in bringing a private nuisance action in respect of an
isolated escape, and even a one-off escape could invite liability under private nuisance, as long as it is found to
unreasonable in the circumstances (Barr v Biffa Waste Services (2012); British Celanese).

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 Additionally, it is submitted that private nuisance goes further than the rule in R v F. It has greater reach
for the purposes of liability. Private nuisance covers damage caused by intangible escapes such as noise and
vibrations (Coventry v Lawrence (2014)) and noxious odours (Barr). The rule in R v F, however, is confined to
the accumulation and escape of a tangible object from land which is likely to cause damage. In fact, liability
can arguably be achieved more easily using the test of reasonableness alongside common law factors, as is the
practice in private nuisance claims. Having to satisfy multiple requirements under the rule in evidently more
onerous, given the difficulty determining non-natural use. Unsurprisingly, Professor Willem van Boom in 2005
observed that decisions and subsequent academic writings have exposed the rule in R v F as a faux pas; the rule
did not contain any simple principle and was difficult to apply due to the ‘non-natural’ requirement.

Those who advocate retention of the rule as a separate legal concept insist that the rule is one of a kind.
Lunney & Oliphant explain how there is academic view to the effect that the rule derives from a wider,
medieval legal system of pure strict liability while private nuisance is simply intimately concerned with
protecting interests in land. Nolan in 2005 argued that unreasonable use of land and non-natural use of land are
two different concepts – ‘unreasonable use’ is concerned with whether the defendant’s activity on land is
tolerable and the focus is on what neighbours may reasonably be expected to put up with (Barr). ‘Non-natural
use’ focuses only on the nature of the defendant’s activity and not the extent of its interference to the claimant.
McHugh J in delivering his dissenting speech in the Australian case of Burnie Port Authority v General Jones
Pty. Ltd. (1996), on the question of whether the rule in R v F is distinct and should be retained, explained that
‘non-natural use of land’ and ‘negligent use of land’ are contrasting concepts, and different considerations apply
when judging the two. McHugh J maintained that the rule in R v F is different in character, and negligence
cannot absorb its function. These views suggest that the rule is distinct from private nuisance and even
negligence, and thus should be retained.

The rule in R v F is also said to be overshadowed in its function and utility, by the newer tort of
negligence, that is equally equipped to deal with property damage caused by isolated escapes from land. If this
is true, then the Rule has nothing additional to offer apart from what negligence and private nuisance are
perfectly capable to deal with. Professor Williams was of the opinion that the ‘non-natural use’ test is akin to
unreasonable risk of harm in negligence, for example the factor of magnitude of risk. It is relevant in determining
whether the defendant acted reasonably in negligence, and it is also relevant in determining whether the
defendant’s use of land was non-natural in R v F. Although the Rule does not require proof of a duty of care, or
causation, it does require proof of non-natural use which may involve the same considerations as that of ‘breach
of duty’ under negligence. And foreseeability of harm is required just the same for liability. This would mean
that there would be no use in retaining both the rule in R v F and negligence as concurrent principles of liability.
In fact, one may argue that negligence should be preferred over the rule in R v F since under negligence, the
claimant may claim not only for property damage but for death and personal injury. Claims for personal injury
and death would not be permitted under the rule since they are personal in nature and not proprietary, and the
rule deals only with interests in land: Hunter; Transco.

At this juncture, the majority ruling of the Australian High in Burnie Port Authority is pertinent. The
Court ruled that “the elements of accumulation of something dangerous and of non-natural use are obscure… it
is difficult to achieve liability under the rule – a certain threshold of danger must be exceeded before there will
be liability.” The Australian High Court held that the rule in R v F had become obsolete and has clearly been
absorbed by the principles of ordinary negligence. As a result, the Australian jurisdiction has since abolished
the rule in R v F and uses the negligence law and/or private nuisance law instead.

The English jurisdiction is yet to follow suit. Unlike the Australian judiciary, the English judiciary will
not abandon the rule. The HOL in Transco unanimously took this view, and criticized Burnie Port Authority.
Lord Walker in Transco stated that it would be premature to say that the rule has become obsolete and Lord

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Bingham argued that the rule still serves a useful purpose even though it is applicable to limited cases. To abolish
the rule would create a vacuum in common law. Lord Hoffman opined that establishing the rule is a distinct tort
could mark the beginning of ‘enterprise liability’ – a policy that ensures that the “cost” of a non-natural use of
land (causing damage to neighbouring property) would be internalized, in that it would be borne by the
offending defendant itself. In any event, Lord Hoffman stressed that instead of abolishing the rule, it perhaps
should be unified with strict statutory liability, with considerations as to insurability being incorporated into
statutory provisions. Lord Bingham was of the view that it is not up to judges to abolish the rule; extending the
rule or abolishing is Parliament’s responsibility. Murphy in 2004 lends support to this view, arguing that “the
rule is a useful residual mechanism for securing environmental protection by individuals affected by harmful
escapes from polluting heavyweight industrialists.”

It is arguably undeniable that there may instances in which a court may find that the interference to the
claimant’s use of land was reasonable, but that the defendant’s use of his land in the same instance was not
natural. If such an instance arise, retention of the rule would prove to be a wise move. Indeed, in Northumbrian
Water Ltd. V Sir Robert McAlpine Ltd. (2014) the Court of Appeal found that the kind of damage suffered
could not be claimed under private nuisance or negligence, and that the claim could not have succeeded without
proving fault and non-natural use. The facts brought the claim within the ambit of the rule in R v F. Even though
there is contention that private nuisance is equally competent to deal with cases of isolated escapes from land,
there are opinions to the contrary. Professor Newark in The Boundaries of Nuisance 1949 said that nuisance
is the more desirable area of law for continuing interference, and not isolated, one-time escapes.

The principles of private nuisance have greater reach than the rule in R v F. Private nuisance is able to
establish liability even for one-time interferences (in Anglian Water Services v Crawshaw Robbins Ltd. (2001)
Stanley Burton J said: “A single act which caused a stench to come onto a neighbour’s land, for example by
damaging a pipe carrying noxious gas, would constitute an actionable nuisance…”. The combined existence
of private nuisance and negligence are more than enough to cater to the kind of disputes that would usually fall
under the rule. There are too many uncertainties and complexities associated with the rule that its retention
appears to be more of a hassle than help.

2015 (B) Q1:

‘Only persons with a legal interest in property are entitled to live free of nuisance.’ Discuss.

Suggested Answer (1318 words):

The statement in question implies that to live free of nuisance, one would have to possess some legal
interest in his property. This invites discussion as to the requisite standing in law to sue for private nuisance.

Nuisances may be private or public. Private nuisance is defined in Winfield & Jolowicz on Torts
(2010) as an ‘unlawful interference with a person’s use or enjoyment of land, or some right over, or in
connection with it’. Public nuisance, in contrast, is a crime and is actionable in tort where the claimant suffers
special damage in addition to suffering nuisance which is public in nature. Private nuisance involves claiming
in respect of nuisance suffered only by the claimant (not the entire public), in relation only to his own property
(not public property). It is thus fitting that in order to protect one’s private enjoyment of his own property, one
must first show that he does in fact have some right or interest in his property.

In essence, the tort of private nuisance had always been understood as a “tort to land… a tort directed
at protecting the plaintiff’s enjoyment of rights over his land”, per Professor Newark. The traditional position
of English Law laid down in Malone v Laskey (1907) has been that only those who have a legal interest in the
land affected can sue in private nuisance. This rule has however been modified by the Matrimonial Homes

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Act 1983 and s.30 of the Family Law Act 1996, which give spouses or civil partners both a ‘home right’ not
to be evicted by the other spouse/partner when already in occupation and where the court gives its leave, a right
to enter and occupy the home. Spouses living in matrimonial homes too are therefore regarded as having the
necessary legal interest in property, to bring action in private nuisance.

The position in Malone was challenged in Khorasandjian v Bush (1993), with Dillon LJ calling the
propriety interest requirement ‘ridiculous’. His Lordship introduced a much more generous approach to standing
to sue, freeing nuisance from the ties of property interest. In Khoransandjian justice favoured allowing a child
living with parents, to sue for harassment on the basis that the child had ‘occupational rights’ and this gave the
child some substantial link to the property. This principle was applied in Khorasandjian, arguably because at
the time, there had been no other branch of law that would give the claimant adequate and effective remedy
against the wrong she had suffered.

In the subsequent case of Hunter v Canary Wharf Ltd (1996) the Court of Appeal agreed with the view
in Khorasandjian, that ‘occupation of property as a home’ would be sufficient to give an individual legal
protection. However, the House of Lords (hereinafter “HOL”), in the same case in 1997 returned to the orthodox
position, overruling the COA. Lord Goff stressed: “... on the authorities as they stand, an action in private
nuisance will only lie at suit of a person who has a right to the land”. The HOL in Hunter explained that the
approach and reasoning in Khorasandjian should no longer apply as it has now been made redundant due to
the passing of Protection from Harassment Act 1997.

Lord Goff explained that only those who have interests in land (exclusive possession of land) should
have the right to ask for an injunction against another who also has interests in land, as after all private nuisance
is designed to protect only proprietary interest in property. Lord Hoffman explained that if private nuisance
were to be understood as dealing with two distinct types of damage separately, namely (i) property damage; and
(ii) disturbance to enjoyment of land, then it may be right to say that proprietary interest is required only when
suing for property damage and not for disturbance. However, to divide private nuisance this way would amount
to a misconstruction and misunderstanding of law. Such a division would be unrealistic and artificial. In law
and in reality ‘damage to land’ encompasses both the physical and abstract aspects of property, namely the
property itself being unharmed and the ability to use and enjoy the property undisturbed. Nuisance causing
disturbance in enjoyment of land AND nuisance causing property damage BOTH fall under ‘damage to land’.
Once this is understood, “the rule that the plaintiff must have an interest in land falls into place is logical and
indeed inevitable.”

Lord Hoffman went on to explain that if policy reasons are used to relax the requirement of proprietary
interest “nuisance would escape the bounds of being a tort against land” judges will be forced to impose other
“compromise limitations” (such as ‘substantial link’ in Khorasandjian). The result would be an irrational,
distorted and incoherent development of law. Further, to allow someone who only has a substantial link with
land to sue would result in a number of claimants seeking remedy. This would create problems as “damages
cannot be increased merely because more people are in occupation and therefore suffer greater collective
discomfort.” Although the HOL decision in Hunter has been criticized as being extremely harsh and rigid, it
can equally be regarded as ensuring that the law of private nuisance is being interpreted in a coherent and
principled way.

While the position in Hunter remains the authority on the matter and Khorasandjian, no longer good
law, further developments can be seen in cases after the passing of the Human Rights Act 1998. In McKenna
v British Aluminium (2002) and Dobson v Thames Water Utilities Ltd (2009), the courts took into account the
plaintiffs’ right under Art. 8(1) of the European Convention of Human Rights (hereinafter “ECHR”):

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‘Everyone has the right to respect for his private and family life, his home and his correspondence’, thereby
permitting the claimants who did not have proprietary interest to sue successfully. Hence, where the defendant
is a public authority, then a direct action against him will lie at the suit of anyone who holds Art. 8, whether or
not they satisfy the proprietary interest criterion laid down in Hunter. Neuberger J in McKenna, noted that
Hunter remains good law and its limitation may only be challenged in suitable cases. The only other way to
live free of nuisance or disturbance where one does not possess interest in land, is to bring an action for violation
of Art. 8 through Section 6 HRA 1998.

Another question which arises in light of Hunter, is whether those who suffer interference due to an
isolated escape from their neighbour’s land may bring an action for such escape, if they do not possess any legal
interest in their own land. It had been unclear, in light of older decision such as Perry v Kendricks Transport
Ltd. (1956, given that Perry allowed a non-occupier, with no interest in land, to recover damages successfully.
It submitted in view of Lord Goff’s comment in Cambridge Water Co. v Eastern Leather Counties Plc. (1994),
later confirmed by Transco Plc v Stockport MBC (2003) that the focus of both torts is the same – namely the
protection of rights to land – therefore, only claimants with an interest may sue for isolated escapes from land.
In any event the rule in Rylands v Fletcher (1868), which deals with escapes from land, is said to be a subset
of private nuisance and thus the same requirement of proprietary interest would apply.

Other than having the necessary legal interest to sue, a claimant must also show that the interference
was unreasonable. Only then would a claimant truly be able to “live free of nuisance”.

In view of the above discussion, it does appear today that persons without proprietary interest would
face difficulty asserting their right to live free of nuisance. There is, however, hope for claimants without the
type of interest to succeed in an action, taking into account their rights under the ECHR. Alternatively, those
without interest in land may sue in negligence.

2015 (O) Q2:

‘Underlying the tort of nuisance is the idea of the good neighbour.’ Discuss.

Answer Guide:

1. Question requires analysis of the law on private nuisance

2. Private nuisance deals with interferences to a person’s use and enjoyment of land – explain nature of
private nuisance: Hunter. The idea of a “good neighbour” relates to goal of private nuisance law –
enforce mutual enjoyment of and use of land – each neighbour should not inhibit the other’s enjoyment
of land

3. How does the law help achieve this aim?

a) Not all may bring claims – only those with proprietary interest – evaluate: does this help ensure the idea
of “good neighbours” (evaluate Hunter)

b) Creators of nuisance and occupiers may be sued: Sedleigh-Denfield – this arguably helps to ensure
better compliance with the idea of a ‘good neighbour’

c) Unreasonable interference – the manner in which courts decide whether interference is unreasonable –
arguably fair – courts balance a variety of factors – it helps courts to arrive at fair decisions – liability

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 is not imposed based on fault but based on the gravity of the interference. (Discuss how the courts apply
factors, with case law): Barr, Walter

d) Courts are not swayed by the size and utility of a neighbour – thus planning permission, public benefit,
statutory authority do not allow defendants to get away with committing nuisance – this helps to
reinforce the idea of a ‘good neighbour’: Wheeler, Coventry, Barr

e) At the same time, parties are expected to put up with trivial interferences: Baxter, Walter

f) But courts come down heavy on neighbours who commit nuisance deliberately: Christie v Davey,
Hollywood Silver Fox Farms

g) Courts also penalise parties whose nuisance cause property damage: St Helen’s Smelting, Crown River
Cruises v Kimbolton Fireworks

h) At the same times, courts are not unduly harsh in enforcing the rules of liability, where a certain
neighbour’s complaint stems from unreasonable/abnormal/unforeseeable sensitivity: Network Rail
Infrastructure v Morris, Robinson v Kilvert. Unless serious property damage is caused: Hollywood
Silver Fox Farms v Emmett, McKinnon Industries v Walker

i) By limiting claims only to harm that stems from land (property damage and enjoyment), ensures that
the law is not one-sided – this is fair to neighbours – arguably unfair to allow a neighbour to be liable
to the point of ordering damages and injunctions where the harm was personal or does not go to the root
of enjoyment of property: Hunter, McKenna. Also, recovery is not allowed for pure economic losses:
NRI v Williams

j) Defences – to ensure that the idea of a ‘good neighbour’ is more effectively instilled in society, the law
is strict in the sense that only for very concrete/strong reasons can a defendant who has committed
nuisance, avoid liability (20-year prescription, statute) – these defences do not apply easily – difficult
to satisfy: Coventry, Sturges, Barr

k) Even where a defendant has planning permission (Coventry), or was there first (Coventry, Miller v
Jackson), these do not allow them to continue causing a nuisance to their neighbour – the law does not
acknowledge “planning permission” and “coming to nuisance” as defences

4. Finally, the aim of encouraging good neighbourhood is better achieved by practicing strict liability –
private nuisance is a strict liability tort – explain the notion of strict liability – compare with negligence
– liability may be established in the absence of fault – as long as D has caused unreasonable interference,
even if it is without any fault on his part there may be liability – Cl. is prima facie entitled to injunction.

2014 (A) Q1:

‘The law of nuisance is a highly effective weapon against individuals who disturb the quiet enjoyment of
owners/occupiers of property.’ Discuss, using case law to support your answer.

2014 (B) Q1:

‘The law has developed to such an extent that few individuals can legitimately complain of a lack of
protection from nuisance.’ Discuss.

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Answer guide for both questions above:

1. The question relates to private nuisance – in particular, how effective is the law – whether at present,
there is adequate protection under the law.

2. Private nuisance is defined as the unreasonable or unlawful interference by one, with the use and
enjoyment of another’s land or property, causing special damage: Hunter

3. Private nuisance deals with interferences to use and enjoyment of land/ property – private nuisance is
regarded as a land-related or proprietary tort: Hunter (only protects interest in land)

4. Private nuisance does not allow claims for losses that are personal in nature such as personal injury:
Hunter

5. Private nuisance is a strict liability tort – fault need not be proven – all that needs to be proven is that
nuisance was unreasonable: Newark; Lunney & Oliphant; Sedleigh-Denfield; Walter v Selfe

6. The claimant only needs to prove unreasonable interference: Sedleigh-Denfield v O’Callaghan;

Hunter v Canary Wharf; Barr v Biffa Waste Services

7. As long as the Cl. has proprietary interest to sue (Hunter, Malone), the task of establishing liability is
not as challenging

8. Only unreasonable interference needs to be established: it is judged by looking at a number of factors,

such as the seriousness of the interference (whether it has caused property damage: (St Helen’s
Smelting v Tipping), the locality in which the interference occurred (Sturges v Bridgman), duration of
the interference (Crown River Cruises v Kimbolton Fireworks), planning permission (Coventry) and
malice (Christie v Davey)

9. As to whether the law is effective and enjoyment is protected adequately under the law:

i) The legal interest requirement (Hunter) – this may be said to be restrictive but fair. It limits the
number of people who may sue for nuisance, but those who do not have proprietary interest can
always claim under either negligence (if they have suffered property damage) or alternatively
under HRA 1998 if they have suffered interference with right of private family life (Art. 8
ECHR) (McKenna, Dobson)

ii) The ability to sue non-creators – claims are not limited to those who created the nuisance –
claimants may sue those who merely occupy land from which nuisance originates, even where
the nuisance was caused by nature (Leakey) or a third party (Sedleigh-Denfield). Claims may
also be brought against landlords for nuisance caused by tenants: Lippiatt, Tetley v Chitty. Note
however: Coventry on suing landlords today

iii) The unreasonable interest criteria for liability – balancing exercise – test is based on ordinary
and reasonable expectation of enjoyment - courts use a variety of factors – liability is strict –
as long as the interference is unreasonable, D will be liable even if he is not at fault: Sedleigh-
Denfield. The factors are often weighed in the home owner’s favour: Sturges, De Keyser’s
Royal Hotel v Spicer Brothers, Thompson-Schaub v Costaki, Miller v Jackson, Hollywood

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 Silver Fox Farms v Emmet, Christie v Davey, Barr v Biffa, Coventry. Public benefit in D’s
activity will not tilt the scale in his favour if the gravity of interference is unacceptable to the
ordinary person. Note however: where the interference is unforeseeable or the result of very
sensitive property use, the claim will fail: Network Rail Infrastructure v Morris

iv) Once there is malice (Christie, Hollywood Silver Fox Farms) or property damage (Crown
River Cruises v Kimbolton Fireworks, St. Helen’s Smelting v Tipping), the law automatically
protects the home owner.

v) Limited defences available to defendant – only statutory authority and statute needs to
impliedly or expressly authorise nuisance for this defence to apply: Barr. The 20-year
prescription defence is difficult to apply in D’s favour: Sturges, Coventry. Coming to nuisance
is not a defence: Miller, Coventry. And planning permission is also not a defence: Gillingham
BC v Medway Dock, Coventry

vi) Prima facie entitlement to injunctions – once a claimant is able to prove unreasonable
interference, he is prima facie entitled to an injunction: Coventry

vii) However, the type of losses/damage that may be recovered – limited to property-related damage
and losses only. The law is strict. No claims may be made for any loss that is personal in nature
(physical injury, distress, inability to enjoy life, illness, mental harm, death anxiety resulting
from nuisance is not recoverable under private nuisance: Hunter). This is balanced out by the
availability of negligence for losses and injuries that are more personal in nature and any pure
economic loss.

10. It appears that the tort of nuisance favours protection of enjoyment of property quite adequately

11. The rule in Rylands v Fletcher is an off-shoot and subset of private nuisance which also furthers the
aim of private nuisance. Claimants may sue for escapes from land that cause property damage.
However, today, unlike private nuisance, liability is no longer strict. It must be shown that damage was
reasonably foreseeable (Cambridge Water). The rule only applies where the use of land was non-natural
in the sense that it was extraordinary and unusual: Transco, Rickards, Read v Lyons. Also, where there
is no escape of something deliberately accumulated by the D, liability will not arise: Rylands, Giles v
Walker, Read.

12. As a whole, private nuisance is effective in protecting enjoyment of land and protecting against property
damage. Even if the requirements in Rylands are not met, liability can be established more easily under
private nuisance.

2014 (O) Q1:

‘The law of nuisance creates a reasonable balance between the interests of home owners/occupiers and
the interests of business enterprises.’ Discuss.

Answer guide:

1. The nature and function of private nuisance as a Tort - Barr: preserve the individual’s common law
right to peacefully enjoy private property

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 2. To achieve this – the tort focuses on protecting land-related interests – rather than personal interests:
Hunter

3. Definition of private nuisance: Hunter

4. Creating a reasonable balance – both should mutually enjoy right to use and enjoy respective property
- Sedleigh-Denfield: “A balance has to be maintained between the right of the occupier to do what he
likes with his own, and the right of his neighbour not to be interfered with.”

5. How do courts carry out the balancing exercise between the interests of different land users? How do
courts instil the notion of a ‘good neighbour’ – by evaluating whether a particular complain of private
nuisance is reasonable by weighing up different factors:
a) Locality
b) Duration
c) Abnormal sensitivity evaluate each factor with case law
d) Malice

6. However, at times it is difficult to strike the balance, especially with business enterprises – usually
claiming to operate under statutory permission, or planning permissions – however, courts have been
cautious not to tip the scale in favour of business/industries – this would go against protecting the right
of individuals enjoying private property. For example:
a) Barr v Biffa
b) Coventry v Lawrence
c) St Helens Smelting
d) Network Rail Infrastructure
e) Gillingham

7. Courts have been mindful of certain aspects when balancing the interests of private home owners and
business, such as: (i) the effect of planning permission, (ii) the effect of operating under statute, (iii)
whether the interference is so serious as to cause property damage or intolerable nuisance, and (iv)
public benefit in D’s activity

8. The above cases show that the courts have stood true to the purpose of protecting the home owner’s
right of enjoyment

2011 (A) Q4:

What is meant by “strict liability”? In the light of the case law, to what extent is the rule in Rylands v
Fletcher a tort of strict liability?

Answer guide:

1. Explain the concept of strict liability: liability in the absence of fault

2. Cl. does not have to prove that the tort was committed through fault – as long as the tort has been
committed, whether or not it was committed through fault, D is strictly liable

3. This position makes it easier for Cls. to establish their claim and succeed – promotes effective remedy
and compensation

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4. Fault-based torts/ fault-based liability requires proof that not only was some tort/ wrongdoing
committed but the manner in which it was committed involves fault on D’s part

5. The requirement of fault can be established by showing either that D knew he would cause harm but
proceeded anyway (harm was reasonably foreseeable), D was careless or D intentionally committed the
wrongdoing.

6. To prove fault makes it harder for Cls. to succeed but is arguably fairer in that D’s are not unduly
punished where they had no knowledge or could not have avoided harm to Cl.

7. Nonetheless, most torts require proof of fault to establish liability: negligence, occupiers’ liability

8. Some torts are originally strict liability tort – Cl. may succeed against D even if D did not know, was
not careless or did not have intention to cause harm: private nuisance and defamation (in a way)

9. Liability under the rule in R v F is said to be strict – especially originally

10. The answer will evaluate whether it remains a strict liability rule today

11. Originally, liability under R v F can arise even where D is not at fault – had no intention, did not know,
could not foresee harm and/or took all reasonable care

12. Origins of the rule: explain case facts, decision and principle in Rylands v Fletcher (1868)

13. D may be liable for bringing or accumulating anything on land, if it is dangerous, escapes and causes
damage to neighbouring land, he is prima facie answerable (Blackburn J)

14. Criteria for liability: (i) accumulation (Giles v Walker: no liability for things naturally present on land);
(ii) escape causing damage (Read v Lyons: there has to be movement of the dangerous substance from
D’s premise to a place outside D’s premise); (iii) accumulation = non-natural use of land (Transco:
unusual and extraordinary use of land, Ct. will look at whether the type of damage caused to Cl. is
something Cl. will usually insure against, Rickards v Lothian: no liability for uses of land which are
ordinary/ for domestic purpose)

15. None of the requirements require proof of fault – indeed in R v F itself, D was not at fault – could not
have predicted or prevented the flooding – caused by heavy rain – unknown to D, D’s contractors built
reservoir without informed D of an underground tunnel leading to Cl.’s property (caused water to flood
Cl.’s property) – D was found liable anyway – liability strict

16. For liability under the rule, it needs to be shown that use of land was non-natural, and Cl. does not need
to show that D failed to take reasonable care – comparing with negligence, R v F involves strict liability
whereas negligence involves proving foreseeability of harm and failure to take care: Lord Goff & Lord
Reid in Cambridge Water: “Cl. does need to show negligence in the narrow sense”.

17. However, Cambridge Water changed the law – explain case facts, decision and principle

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18. In Cambridge Water, given the facts, it was necessary for the court to ascertain whether the damage
suffered was too remote based on The Wagon Mound principle. In other words, the defendant should
not be compelled to pay damages for damage that he could not have foreseen and could not have
prevented – this would be unfair especially on the facts of the case (Cl’s loss was mainly because of the
EC directive that came into force long after the D began causing escape and before the EC directive,
even though the escape of chemicals had been going on for years, no loss was suffered by the Cl.)

19. Transco affirmed that moving forward, the requirement of foreseeability and remoteness would now
permanently apply in all cases where the Cl. is seeking damages for property damage, and this would
include escape cases that fall within the R v F rule.

20. Since Cambridge Water and Transco, foreseeability as a test for remoteness of damage is now a legal
criterion to establish liability under the rule, in all escape cases. This being the case, it is undeniable
that the element of fault has now become part of the law of R v F.

21. Foreseeability points towards fault to an extent. If it can be shown that damage was foreseeable, this
would suggest that the D had knowledge and continued with the activity that he knew would cause
harm. In this sense, the introduction of the foreseeability requirement has incorporated the fault element
into the rule in R v F.

22. After Cambridge Water, it is argued that liability under the rule in now fault-based – need to prove
foreseeability of harm (as discussed above) – Wagon Mound test for remoteness – can be seen as a
fault element

23. Conclusion: rule in R v F has changed today – started off as a strict liability tort, but has evolved and
become a fault-based tort.

24. It will now be more difficult to establish liability – the remoteness test now means that the rule shares
a common characteristic with the tort of negligence: remoteness. It also takes away one aspect of what
makes the rule so unique and distinct from other torts: its ability to impose liability strictly for dangerous
industrial activities that endanger the property of others or the environment, to ensure accountability

25. However, the importance of industrial activity in modern times arguably calls for a pro-defendant
approach to liability under the rule. Otherwise, instances of liability will most likely increase, forcing
industrialists to pay hefty sums in compensation for inevitable damage due to industrial development.
Insurance claims will sky-rocket and industrial activities are likely to become a lot more expensive.
Costs may be transferred to the consumer and price of goods may in turn soar.

26. Another possible consequence is that industrialists may compromise or become defensive, retreat and
jeopardise the balance of demand and supply of goods. Economic repercussions might also be a
deterrent against returning to strict liability.

27. Fault-based liability may just be justified for current times.

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2011 (B) Q3:
“In order to be actionable as a nuisance, the relevant interference must be judged to be “unreasonable”.
“Unreasonableness” is one of the key concepts in nuisance law. Unfortunately, it is also one of the key
puzzles.” (Steele, Tort Law) Discuss.

Key points

i) The question requires analysis of the test for private nuisance: unreasonableness

ii) Start with the characteristics of private nuisance: tort related to land, protects interests in land

iii) Damage/ loss must be proven. Only special types of losses may be claimed: encroachment, property
damage & loss of enjoyment

iv) Strict liability: fault is not necessary – as long as interference was serious enough, does not matter
whether D had knowledge, took care, was careless, or knowingly caused nuisance

v) Fault needs to be proven only where the claimant is asking for damages for property damage or if the
claimant is suing a non-creator (occupier or landlord)

vi) Claimants need proprietary interest to sue

vii) The most important criteria to be fulfilled: unreasonableness – but whether the interference is
unreasonable will depend on a variety of factors

viii) Factors should be discussed:

v Locality: locality matters, also planning permission may be relevant (whether planning
permission changes the character of locality). Locality will not matter when property damage
is caused by the interference

v Duration: duration and timing are relevant, but where property damage is caused, interference
will be considered unreasonable if there is property damage even though interference is short
–term. Isolated interferences can also attract liability

v Abnormal sensitivity: refers to the condition of the property and type of use of property – more
recently courts look at whether the interference is foreseeable. If not, then the claimant’s use of
land may be abnormally sensitive

v Malice: malice will usually automatically mean that interference is unreasonable

v Public benefit: usually does not help the defendant because the right of enjoyment is more
important under common law

ix) Each factor should be discussed analytically, questioning how the factor has been used in different cases
and whether the student agrees with the manner in which the factor was used to reach an answer on
unreasonableness

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 x) Comparisons may be made with negligence: how breach is determined – factors for breach

xi) Appropriate conclusion may be reached on whether unreasonableness is indeed challenging in private
nuisance law

2010 (A) Q5:

“Where the claimant complains of nuisance created by the defendant, the law is quite straightforward:
complications arise in deciding when defendants should be liable for a nuisance which they have not
themselves created.” Discuss.

Answer guide:

Introduction:

The question deals with the problem of suing occupiers and landlords in private nuisance when they have not
created the nuisance.

Discussion:

1. Suing a creator of nuisance:

i) Provided the creator can be identified and sued – it is usually easier to establish liability against the
creator

ii) A creator of nuisance is usually the primary defendant and can be sued without having to satisfy
additional criteria: Thomas v National Union of Mineworkers

iii) This is due to the degree of personal responsibility for nuisance: Sedleigh-Denfield v O’Callaghan

2. Suing a non-creator of nuisance:

When pursuing a claim against a D who has not created the nuisance, there are generally two categories of non-
creators who are often sued: (i) landlords; and (ii) occupier:

(i) Landlords:
® Liability is on the basis of fault

® Fault has to be established by proving that the landlord knew and authorized the nuisance by the tenant

® Smith v Scott (1973): "In general, a landlord is not liable for nuisance committed by his tenant, but to
this rule there is, so far as now in point, one recognised exception, namely, that the landlord is liable if
he has authorised his tenant to commit the nuisance... The exception is not based on cause and probable
result, apart from express or implied authority."

® Tetley v Chitty (1986): Landlord knew tenant was renting premise to carry out go-karting activities –
knowledge and lack of prohibition on landlord’s part amounted to authorisation

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 ® Lippiatt v SGC (1999): travellers camped on the defendant’s land and trespassed onto claimant’s
property causing a nuisance – the defendant had authorized the nuisance by giving the campers a
launching pad from which nuisance could be committed – fault established

® Hussain v LCC (1999): the landlord was not liable here because the tenancy agreement prohibited anti-
social behavior by tenants. Further, the nuisance did not arise from the tenancy or use of property but
from personal resentment towards the claimant on grounds of race and ethnicity. Thus, the council did
not authorize the nuisance. However, note that the decision has been criticized because the landlord
here could have put an end to the nuisance suffered by the claimant by evicted the wrongful tenants
since their acts did violate the tenancy agreement, but the council failed to act. Some argue that this
should be taken as implied authorization to commit nuisance, but the judges in this case did not decide
in this manner on the facts.

® Coventry v Lawrence (2014): a landlord knowingly letting its premises to a tenant who is likely to
commit nuisance cannot be deemed to have authorized the nuisance. It is inevitable that the landlord
will have knowledge of the use of the property but this knowledge is insufficient to establish fault on
the landlord’s part. Something more is needed: ‘active’ or ‘direct’ participation in the commission of
the nuisance. A landlord is entitled to tenant the property, trusting and expecting the tenant to carry out
his activities without causing nuisance to others.

(ii) Occupiers:
® Liability is also on the basis of fault

® Fault is established by proving that the occupier adopted the nuisance

® Adopting nuisance is shown by proving that the occupier knew of nuisance started by another or by any
act of nature but failed to take steps to put an end to the nuisance, thereby continuing the same

® Sedleigh-Denfield v O’Callaghan (1940): “If a man permits an offensive thing on his premises to
continue to offend – that is, if he knows that it is operating offensively, is able to prevent it, and omits
to prevent it – he is permitting the nuisance to continue.” (Lord Atkin) D was found liable. An occupier
may be liable for a nuisance created by a third party (including a trespasser), provided he knew or ought
to have known about the nuisance and failed to take reasonable steps to eliminate it. There is no absolute
duty to end it in private nuisance law, only reasonable steps are required. (Lord Wright).

® Also, Page Motors v Epsom BC (1981) where the D was liable for nuisance committed by gypsies who
were trespassing on D’s land – Cl. owned a business in the neighbouring land & suffered loss because
of nuisance by the gypsies. Sedleigh-Denfield was applied & D was liable for nuisance – fault
established – adopted nuisance

® Lemon v Webb (1894) & Smith v Giddy (1904): D was liable for nuisance triggered by acts of nature
– occupier of land on which trees grew liable for branches that overhung the neighbour’s property
causing damage. D was liable for adopting the nuisance because D failed to act

® Goldman v Hargrave (1967): Lightning struck D’s red gum tree and set it on fire – D chopped down
the part that was on fire intending to let it burn out – wind blew ignited the burning portion and caused
the fire to spread to Cl.’s property, causing extensive damage. Cl. sued in negligence, occupier’s liability

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 and private nuisance. D was found liable under negligence and occupier’s liability but not private
nuisance. Where nuisance is caused by an act of nature, as long as some steps were taken, D will not be
regarded as adopting nuisance. It does not matter that the steps were not sufficient to stop the fire.

® Leakey v National Trust (1980): The Cl. owned 2 houses built on the base of a large mound on D’s
land. Due to weathering parts of the mound broke loose and fell onto Cl.’s land and D was aware of
this occurrence as early as 1968. Later a large crack opened up in the mound and D failed to take any
action. More of the mound fell on the Cl’s property causing damage and the Cl. brought action under
private nuisance. D was found liable. Cl. pleaded nuisance but argued on “breach of duty”. Claims may
be brought under nuisance or negligence but liability was in fact established under negligence here.

® Same position taken in Holbeck Hall Hotel v Scarborough BC (2000) – Council D could not stop soil
erosion resulting in the collapse of the claimant’s hotel. Court compared with Leakey and held that the
defendant is not expected to take disproportionate steps or incur unrealistic costs to stop nuisance of
such great magnitude especially where the D would not be able to afford such measures. D was not
liable, because the nuisance could not be prevented – natural soil erosion on large scale – act of nature.
Stuart Smith LJ: “the law must take account of the fact that the occupier… had this hazard thrust upon
him through no… fault of his own. His interest, and his resources, whether physical or material, may
be of a very modest character in relation to the magnitude of the hazard... A rule which required of
him… a physical effort of which he is not capable, or an excessive expenditure of money, would be
unenforceable or unjust.”

® Lambert v Barratt Homes (2011): no liability where the occupier did take reasonable care (principles
of negligence factored in)

4. Analysis and conclusion:

a) Determining the extent to which a landlord has authorized nuisance is difficult. The suggestion in
Coventry makes it even more complicated – what does active or direct participation mean and how
often are landlords even actively or directly involved in what a tenant does with the property.

b) Suing occupiers for nuisance caused by an act of nature – liability is often allowed by proving breach,
after evaluating foreseeability and practicality of precaution – even in cases where the claim is framed
in private nuisance – the criteria used to impose liability are actually negligence criteria but applied in
cases filed under ‘private nuisance’. Judges care little about labels (“The label nuisance or negligence
is treated as of no real significance”: Delaware Mansions v Westminster CC (2002) Lord Cooke)

c) It needs to be clearly explained that liability cannot arise under private nuisance, and only under
negligence and occupier’s liability

d) However, judges have mixed principles of negligence and private nuisance in deciding claims against
occupiers for nuisance caused by acts of nature. (Failing to take reasonable care, practicality of
precaution and foreseeability do not belong in private nuisance)

e) There is a cross-infection between private nuisance and negligence here – confusing. This begs the
question, whether claims against non-creators would be better filed under negligence instead.

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