Nuisance

Public v Private
What is a
Nuisance?
Generally speaking, a nuisance concerns any source of
inconvenience or annoyance, but the tort of nuisance has
a more restricted scope and not every inconvenience or
History behind Nuisances
annoyance is actionable.
The word 'nuisance' is actually
old french for 'harms'

There are two types of nuisances; public and private

Public Nuisance
Public nuisance is conduct that interferes with the reasonable
comfort and convenience of the public at large, or, at least, a
sufficiently wide body of citizens. Nevertheless, public nuisance
may be actionable as a tort if P suffers particular damage, that
is, damage different in kind (and not merely in degree) from that
suffered by everyone else.

Public nuisance arises basically as a result of interference with

any of four basic categories,

(1) public decency,

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

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

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

Liability under Rylands v Fletcher is

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

"... the person who brings onto his land and collects and
keeps there [in the course of a non-natural user of that
land) anything likely to do mischief if it escapes, must
keep it in at his peril, and, if he does not do so, is prima
facie answerable for all the damage which is the natural
consequence of its escape."
Facts

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

defendants employed independent contractors to
construct a reservoir on their land. The contractors
found disused mines when digging but failed to seal
them properly. They filled the reservoir with water. As a
result, water flooded through the mineshafts into the
plaintiff’s mines on the adjoining property. The plaintiff
secured a verdict at Liverpool Assizes. The Court of
Exchequer Chamber held the defendant liable and the
House of Lords affirmed their decision.
 Test in Rylands v
Fletcher
It was decided by Blackburn J, who delivered the judgment of the Court of Exchequer
Chamber, and the House of Lords, that to succeed in this tort the claimant must show:

1. That the defendant brought something onto his land;

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

The central issue in private nuisance is whether the interference

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

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

"An activity which is carried on with all reasonable precautions

may nonetheless interfere unreasonably with the plaintiffs rights...."

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

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

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

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

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

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

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

PHYSICAL
DAMAGE VS PLEASE NOTE!!!
PERSONAL Determination of liability in nuisance
appears to be based on the nature of the
DISCOMFORT damage. A distinction is drawn between:

(a) physical damage to property and

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

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

Facts

P claimed damages in nuisance from D for interference with the reception of television
broadcasts alleged to be caused by the presence of a tower built by P in an enterprise
zone. The tower was about 250 meters high and over 50 meters across. D contended that:
(i) interference with television reception as not capable of constituting an actionable
private nuisance. (ii) that they were entitled to rely on a defence of statutory authority, and
(iii) that in order to sue in private nuisance the plaintiffs had to establish a proprietary or
possessory interest in the land affected in order to have locus standi.
 PERSONAL DISCOMFORT
HUNTER V. CANARY WHARF LTD., [1997] 2 W.L.R. 684 (H.L)
Held
Interference with television reception by the erection of a tall building was not capable of
constituting an actionable public or private nuisance since ... the erection of a building in
the line of sight between a television transmitter and other properties was not actionable as
an interference with the use and enjoyment of land ... "[A]n owner was entitled to build
on his land as he wished ... and was not generally liable, in the absence of an
easement or agreement, if his building interfered with his neighbour's enjoyment of
their land, and that, accordingly, since the interference with the plaintiffs reception
signals was the result simply of the presence of the building on the defendant's land
no action in private nuisance lay in respect of such interference."
 Understand that personal
discomfort does not equate
to a nuisance. There must be
some damage done
NUISANCE
THE REASONABLE USER

The issue essentially depends on whether conduct is to be deemed

unreasonable in relation to the harm suffered. Private nuisance being a
consequence-based tort, liability is not based on whether the defendant
acted reasonably or whether they did all they could to prevent the
nuisance occurring. Put differently, taking reasonable care does not
prevent liability. The court has to consider a range of factors.
FACTORS THE COURT
CONSIDERS
Locality
Plaintiff's Abnormal Sensitivity
Duration of Interference
Public Benefit or Utility of the Defendant's Conduct
Malice
LIABILITY FOR
ANIMALS
Understanding the Law
WHAT WE WILL COVER
(a) liability for cattle trespass;
(b) liability for dangerous animals (the ‘scienter action’);
(c) liability for dogs;
LIABILITY FOR CATTLE TRESPASS
One of the most ancient causes of action known to the common law lies where cattle
in the possession or control of the defendant are either intentionally driven onto the
plaintiff’s land or stray onto such land independently. The essence of the tort has
been expressed in the following manner in the case Cox v Burbidge (1863) 143 ER 171:

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

At common law, there is no liability in cattle trespass

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

The rationale behind the rule is that the owner of land

abutting a public road is deemed to have consented to
run the risk of the dangers incident to the ordinary, non-
negligent use of the highway
 PLEASE NOTE!!

Section 13 of the Trespass Act of Jamaica has a few

exceptions to this rule, however:

1. The immunity does not apply where the plaintiff has

fenced his land to keep out livestock
2. The defendant has the responsibility to show the
Court that he was driving his cattle lawfully along
the highway
LIABILITY FOR DANGEROUS ANIMALS (SCIENTER)

Common LAw

Animals Ferae Naturae Mansuetae Naturae

Strict Liability for Owner No Strict Liability for Owner

Horses, Donkeys, Cows, Sheep, Goats,

Lions, Bears, Elephants, Crocodiles
Cats, Dogs
 Establishing Liability fo
r
Dangerous Animals
Establish the type of animal (Wild or Domestic)

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

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

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

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

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

If the animal was displaying what could be deemed to be natural

behaviour as opposed to mischievous or violent behaviour, a
'Scienter' action will not succeed.
 MCINTOSH V MCINTOSH (1963) 5 WIR 398, COURT OF APPEAL, JAMAICA

Facts: The plaintiff was riding his jenny along a bridle track when the defendant’s jackass jumped
onto it in an attempt to serve it, causing injuries to both the plaintiff and the jenny. There was
evidence that on a previous occasion the jackass had attempted to serve the jenny while it was in a
lying position and had kicked it, and that the defendant knew about this

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

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

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

Section 2 of the Legislation stated the following:

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

Section 5(1) states the following:

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

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

(a) a previous mischievous propensity in the dog;

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

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

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

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

Carberry J:"

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

WILL
CONSIDER 2 Relationship of Control

3 Presence of a Tortious Act

4 Act in the Course of Employment

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

"The expression “vicarious liability” or, perhaps, more accurately,

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

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

Employer/Employee| Principal/Agent|
Vehicle Owners/Appointed drivers

It is important to understand that not all circumstances involving

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

What is the Control Test?

The Control Test asks the question, "Who is in control of the

individual's work?" If the activities in question are controlled, then
the controller can be held vicariously liable.
TORTIOUS ACT?

Negligence/Recklessness/Criminal act

Having established the presence of control, you need to then show

that there is some tort present such as negligence or recklessness.
lister
IN THE COURSE
OF EMPLOYMENT

Frolic of His Own/Authorised Activity

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

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

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

Contents Statutory Foundation

Key Terms

Defences

Exclusion of Liability

Limitation of Warnings

Common Law Liability

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

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

Key Terms

An Occupier in relation Visitors are those The Common Duty of care

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

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

Lord Pearson in British Rlys Board v Herrington