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Published: Fri, 02 Feb 2018
Law of Tort Law Essay
In order to assess the characters potential liability, it is necessary to look firstly whether the parties wishing to bring an action are able to bring a claim in nuisance. Nuisance was defined by Professor Whitfield as ‘unlawful interference with a person’s use or enjoyment of land, or some right over it’ (Horsey, Kirsty & Rackley, Erika, Tort Law, p 484) Only parties which have an interest in land are able to bring a claim (Hunter v Canary Wharf  2 All ER 426) and as such Sharon who owns her property, Ozzy who leases the sawmill and Kelly who we can suppose either own or leases her property can be the potential claimants as they clearly have sufficient interest in the land to bring a claim. Ozzy’s nanny does not have sufficient interest. The courts in Malone v Laskey  considered that only proprietary interest was sufficient for a claim in nuisance. This interpretation was widened in the case of Khorisandijan v Bush as it was considered by Lord Justice Dillon to be ‘ridiculous’ that when a person making ‘pestering telephone calls to another’ is only actionable if the claimant has a proprietary interest. However in Hunter v Canary Wharf  2 All ER 426 the court sought to limit its application and bring the requirements of a claimant back to its original state. What is clear is that bringing a nuisance action is inextricably linked with proprietary interest and as the nanny has none she will be unable to seek remedy in nuisance.
It is also necessary to ascertain who can be subject to an action. It is clear that the creator of the nuisance can be sued therefore both Ozzy and Sharon as the creator and occupier can be sued if they are considered to have a ‘degree of responsibility’ (Sedleigh Denfield v O’Callaghan  AC 645). Jack as the landlord of the property can be liable even though is more likely that the creator or occupier would be sued. (Tetley v Chitty  1 All ER 663). Liability can be found if Jack expressly authorised it. Authorisation can be by inference as in the case of Harris v James  All ER Rep where the landlord was taken to have authorised the interference by being aware of the practice at time of giving the lease. Similar to that case Jack was aware of the activity that was going to be carried out as well as the possible nuisance. It is therefore whether him advising Ozzy to be careful vitiate this. But in order for Jack to be liable due to authorisation the interference itself must be actionable.
The next consideration is the nature of the interference suffered. Damage is much wider in nuisance as it covers both sensible amount of personal discomfort and physical damage. The possible nuisance suffered by Sharon as a result of Ozzy’s sawmill is the sound interference. This is the interference with her enjoyment of land and is more difficult to establish. There are therefore various considerations the court look at in order to establish nuisance of this type as not all interference which affect the enjoyment of land are actionable. Firstly there is a requirement for an ‘emanation’. It was opined by Lord Goff in Hunter and Canary Wharf  2 All ER 426 that a nuisance action would generally arise from ‘something emanating for the defendant’s land’ he also highlighted what forms an emanations may take, specifically ‘noise, dirt, fumes a noxious smell, vibrations and suchlike’. The sound interference suffered as a result of Ozzy’s sawmill therefore fulfils that criterion. However the retaliation by Sharon involved silence. The court therefore has to consider whether calling and being silent is considered an emanation. Lord Justice Dillon’s dicta as well as the open ended definition of emanation would mean that pestering telephone calls fall under the category.
Reasonableness is the main factor which underpins whether or not there is an actionable nuisance, this will be looked objectively by the court. Due to its problematic nature in assessing whether the interference is unreasonable the courts will look at various considerations. These include the locality, the duration of the interference, reasonableness of the interference, malicious intent or motive, social utility and the sensitivity of the claimant. Rather than a hard fast rule, these aid the court in deciding whether the interference is actionable as a degree of interference is considered inevitable and therefore must be a degree of ‘give and take’ (Kennaway v Thompson). Ozzy’s sawmill is operating in a small village. The court take into account considerations such as the area as some emanations may be more, or less reasonable ‘having regard to the locality’ (Harvey, Barbara & Marston, John, Cases and Commentary on Tort, p 437). The nature of the village suggests that there would be a reasonable expectation of noise coming from the mill. Lord Westbury highlighted the locality requirement in St Helen Smelting Co. V Tipping  All ER 1389 and stated that there is a degree of ‘sensible personal discomfort’ specifically interference which are consistent with the local areas and therefore the courts in considering whether it is actionable, look at whether people like Sharon should ‘subject themselves to those operations of trade which may be carried out in her immediate locality’ (St Helen Smelting Co. V Tipping  All ER 1389). Taking that into account, it is likely that the court would objectively consider that the local area is consistent with the practices and the consideration of locality would not be satisfied. The locality would not be a consideration in the case of Sharon’s retaliation as her interference is retaliatory and there would be no locality that these actions would be consistent with.
A further consideration is the duration of the interference. Ozzy has extended his business hours and expanded his business and as such his interference is continuing into the night so whilst the locality may make the emanation more reasonable, the interferences duration, specifically it continuing on into the night, as well as its high regularity will make the court more likely to consider it actionable than a building project for a limited period of time. This again is coupled with the concept of the ‘reasonable user’. Whilst continuous activity throughout the day does not necessary make an interference actionable taking into account the other considerations. An interference continuing into the night is more likely to. This was considered in the case of Harrison v Southwark  2 Ch 409 where it was opined that duration is a key prerequisite and the court in deciding whether the interference was actionable took into account ‘both the object and the duration’. This was clarified in the Environment Law Review where it was highlighted that ‘nuisance must have some degree of permanence’ and furthermore it made the bold reasoning that any interference which is either ‘temporary’ or ‘evanescent’ is not actionable. Case law shows that one of instances can be actionable but I would surmise that as these are all merely considerations that the court uses in it reasoning there are cases where one of instances of low duration could be considered actionable, Sharon retaliatory nuisance calls to Ozzy’s home therefore would need to look at it objectively to see whether it satisfied that requirement, as it will only constitute a nuisance if it is frequent. The courts are less likely to consider one off or intermittent incident’s as an actionable nuisance. It would be likely that due to being at unsociable hours with a high degree of frequency it would satisfy this specific consideration. However it would depend again on the claimant having sufficient interest in land. (Hunter v Canary Wharf 1997] 2 All ER 426) and as previously stated the nanny does not.
The reasonableness of the interference is another factor and particularly whether the party could have achieved his or her aims by either not causing or by causing minimal interference. When this is the case, the court will assess whether the party causing the interference could have taken reasonable steps to avoid it. The landlord did advise Ozzy to be careful about the noise and dust so by not guarding against it or taking reasonable precautions to avoid undue interference, the court could consider it conclusive that the interference was unreasonable. Nevertheless, even if reasonable precautions were taken, it would not be conclusive of Ozzy’s reasonableness. It was considered in The Wagon Mound II that ‘an occupier may incur liability for the emission of noxious fumes or noise although he has taken the utmost care in building and using his premises’ (The Wagon Mound II). Therefore it is likely that a court would find that Ozzy’s actions are unreasonable as it is no defence to state that ‘the cause of the nuisance is the exercise of a business or trade in a reasonable and proper manner’ (Vanderpant v Mayfair Hotel  1 Ch 138). Therefore a balance has to be made between reasonable interference and interference which is so unreasonable that it makes a considerable impact on the ‘comfort of a neighbour’. Linked with this consideration and also highlighted in The Wagon Mound II was the concept of ‘reasonable foreseeability’. The interference would be judged by the reasonableness of the activities balanced with the possibility of it harming or interfering with the claimant’s enjoyment of their land. Therefore in a narrow sense there can be a negligence element to nuisance. The interference could and perhaps should have been anticipated by Ozzie and coupled with that he has permitted the nuisance to continue. In Sedleigh Denfield v O’Callaghan  AC 645 the defendant was held liable for continuing the nuisance. Although nuisance can be a state of affairs I would surmise that if the is negligence is found in the narrow sense and the interference is either anticipated, known or adopted, yet the party continues with these practices cases such as Sedleigh Denfield v O’Callaghan  AC 645 consider the party who adopts these practice responsible. This isn’t however a general rule however more of a balancing act and it is likely that Ozzy would be considered liable if there are a number of other considerations which also indicated unreasonableness.
A further consideration the court would take into account is malice. A stated nuisance can arise from a state of affairs as there can be considered to be a strict liability; Bolton v Stone. If there is malice however then like negligence in the narrow sense in nuisance there is an increased likelihood that it will tip the balance in liability and convert an otherwise lawful interference into an actionable nuisance. Ozzy’s business interference would not be considered malicious. However Sharon’s telephone calls to Ozzy’s home would certainly be malicious as the interference is not a state of affairs it is retaliatory and her intention is to cause nuisance to Ozzy. This was shown in the case of Christie v Davey  1 Ch 316 where it was opined by Justice North that as the interference was made ‘deliberately and maliciously for the purpose of annoying the claimants’ this resulted in an in nuisance being satisfied and It is almost certain that if the claimant satisfies the qualification that enable him or her to sue then she would almost certainly be fulfil this consideration; Christie v Davey  1 Ch 316. The recipient of the nuisance calls however is the nanny and as stated due to the ruling in Hunter v Canary Wharf she would not be able to sue due to not having an interest in land. This redefinition of nuisance by Hunter v Canary Wharf to a proprietary interest basis has been looked and its implications criticised. (Anderson, Ingrid (1998) Child and Family Law Quarterly Review). However it will still mean that the nanny would not be capable of bringing an action.
A lesser consideration is whether the activity benefiting the public will prevent the courts attaching liability. Ozzy’s sawmill is likely to be the only sawmill within the village. It was found in Miller v Jackson  that public benefit could prevent liability in nuisance however in Dennis v MOD it was reasoned that whist public interest may sway the remedy it does not prevent action. Therefore it is likely that in a limited sense the importance of the public interest as well as the aforementioned considerations would aid the court in deciding whether a remedy should be allowed. In effect it would be likely that the public benefit aspect lesser status as a consideration would mean that if present the nature of the damages would change.
Kelly’s possible action differs as the aforementioned requirements are irrelevant in cases involving physical damage. Kelly as a result of the dust has suffered tangible damage to her plants. Courts seem more willing to consider a nuisance actionable in case involving such damage. In St Helen Smelting Co v Tipping  the claimant was successful in a claim in nuisance where hedges and trees had suffered physical damage due to the noxious fumes. But the courts will sometimes consider the hypersensitivity of the claimant. Where the claimant or his practices are especially sensitive the court has held in cases such as Robinson v Kilvert  that a person who trade is especially delicate ‘cannot complain because it is injured by a neighbour doing something lawful on his property’. This is especially the case where only those particularly sensitive of trade, plants or people would be affected by the interference. Thus it would suggest that in case where normal plants would not be affected by the dust but Kelly’s plans due to being sensitive would then it would not be actionable. This is displayed in the case of McKinnon Industries Ltd v Walker  which involved sensitive orchids, the claimant was able to recover. So when looking at the damage cause to Kelly plants it is likely the court will look at issues such as foreseeability alongside the sensitivity consideration in order to ascertain whether to allow the claim.
There are also Human Rights Act implications, Sharon and perhaps the nanny could bring an action under the Human rights Act for a breach of Article 8 and Article 1. The courts have indicated that a claim can be successful. In Marcic v Thames Water  however its use was unnecessary as the nuisance claim was successful. But the claim would be dependent on whether there was any statutory for of regulation as the Human Rights Act claim was rejected due to this being in place.
There only possible defence potentially available to any of the characters involved is planning permission with Ozzy. But this would not authorise the nuisance but it is likely that it would highlight that the nature of the locality is consistent with the nature of the business and as such make the activities more reasonable.
The final considerations are the possible remedies available. If the courts considers the interferences actionable Sharon possible remedies are an injunction, but the likely outcome due to public interest implications would be abatement. The possible remedies available to Kelly if successful would be abatement and damages.
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