Tort – Nuisance exam question In this case it is evident that the appropriate area of law that needs to be applied is nuisance. There are two main types of nuisance, private and public. In this case it is private nuisance that has to be applied. The definition of private nuisance is ‘an unlawful, unreasonable or indirect interference with a person’s quiet use and enjoyment of land’. In other areas of tort there is not generally a rule on who can claim and who can’t. However in private nuisance, only those with a proprietary interest in the land can sue. A key case in which this was applied would be Hunter V Canary Wharf Ltd - 1997 where it was the families of tenants claiming, not the actual tenant. As well as there being a rule on who can sue, there is also a rule on who can be sued. Clearly, the creator of the nuisance can be a defendant: however, there may also be liability if someone knows about the nuisance that he or she did not personally create. This can include acts of a third party or natural hazards. For example Tetley V Chitty – 1986. Here, the claimant brought action against the council in relation to disturbance from a go-kart track. A club, which leased the land from the council, ran the track but the council was found liable on the basis that they had knowledge of the nuisance and had consequently ‘adopted’ it. Another case would be Leakey V National Trust – 1980, where the defendants where liable when a large mound, the burrow mump, on their land subsided and damaged the claimants cottages. In cases where the defendant has ‘adopted’, rather than ‘created’, the nuisance, the test for what is reasonable is subjective not objective, i.e. it is what this particular defendant should have done, not what the average person would do. Foreseeability is also a key factor. To decide whether there has been an ‘unreasonable use of land’, the courts consider 5 different points: * Locality (Building noise may be more acceptable in a busy city than in the countryside, e.g. Sturges V Bridgman - 1879). * Frequency and duration (E.g. Miller V Jackson – 1977, where cricket balls regularly went over a fence into a woman’s garden). * Usefulness (if it is going to benefit someone in someway it is not a nuisance. An example of a case in which it was not seen as useful would be Adams V Ursell 1913). * Sensitivity (E.g. Network Rail V Morris – 2004). * Malice (E.g. Christie V Davies – 1893). As with most areas of law, there are defences, and with nuisance, also remedies. The main defences to an action in nuisance are: * Statutory authority * Local authority planning permission (This can, in some circumstances, act as lawful justification for a nuisance). *Prescription (This is a defence unique to nuisance. If the nuisance has continued for 20 years without complaint, then the right to complain will lapse. As regards to remedies, there are three: * Abatement – a ‘self help’ remedy to stop the nuisance. * Injunction – a court order to stop the nuisance * Damages – these may be appropriate if actual harm has occurred or an injunction is not appropriate. In Les’s case, both Norman & Emma and Emily could potentially claim because they have proprietary interest in their land and Les is the apparent owner of his land. Firstly, there may be a case for Norman & Emma being kept awake by Les’s loud drilling and hammering; it is an indirect act because it is noise causing them the disturbance. Locality could be a factor because it is possible that they are not used to having people building nearby. However it could also be argued that they are ‘sensitive’ because not everyone is a light sleeper. A similar case in which the claim failed because of sensitivity would be Robinson V Kilvert – 1889, where there was no liability when the heat required in the manufacture of the defendants’ boxes downstairs in a building damaged the brown paper made by the claimant upstairs, as it would not damage any other paper. The noise is infringing on their enjoyment of the land and it could also be said that Les was being malicious because they asked him to behave more reasonably and he refused; so on those facts he could be found liable. However, the fact that Les was given planning permission could potentially act as a defence. Another potential claim from Norman & Emma would be about the smell from Les’s rubbish bin. Again, the interference is indirect and it is interfering with their enjoyment of the land. The third and final claim Norman & Emma could make against Les is for their plants. The fumes are an indirect interference and because there was a damage caused, it is likely that the claim for financial damages would be successful. The next person who has a potential claim is Emily. The noise is an indirect interference with her enjoyment of her land and so is the smell from the rubbish. However, her reaction was similar to that in Christie V Davey – 1983, in which the defendant, who started off being a potential claimant, retaliated maliciously and consequently was sued successfully for nuisance, and therefore she has lost any possible claim because of her malicious behaviour. In conclusion, Norman and Emma could claim against Les for the interference of their quiet enjoyment of their land, but they may not be successful because it could be seen that they are ‘sensitive’ and there may also be a defence from the planning permission. Norman and Emma could also claim for nuisance in respect to the smell from the rubbish bins, and this claim is likely to succeed. Finally, they could claim for the damages to their plants caused by the fumes emitted from Les’s rubbish. This is also likely to be successful because there has been a clear damage due to an indirect interference cause by Les. In regards to Emily, due to her malicious retaliation, any claim she previously had is void and her claim is unlikely to succeed.