NUISANCE

First determine whether the action lies in private or public nuisance. NB A tort
action in public nuisance is only available where the claimant suffers "special"
damage, and such actions at the present day are uncommon.

A. Private Nuisance

1. Define private nuisance.

2. Private nuisance is a tort which affects land with the consequence that
personal injury is probably not recoverable (i.e. must sue in negligence) and
the claimant must have an interest in the land affected (Hunter v Canary
Wharf).

3. Consider the nature of the damage. Where tangible physical harm is done
the claimant will usually have little difficulty in establishing an actionable
interference (subject to the abnormal sensitivity principle). But where
'amenity' damage is done the interference must be substantial such as would
adversely affect the ordinary person. In this respect the law of nuisance
seeks to balance the conflicting interests of neighbouring occupiers.

4. In order to amount to an unlawful interference, the interference must be

unreasonable, in the sense that the def's use of land must be unreasonable, &
in determining what is unreasonable the following factors may be relevant:
(a) The duration & extent of the interference (must be a continuing or
recurrent state of affairs)
(b) Whether the defendant has taken reasonable care to minimise the degree
of interference
(c) The nature of the locality
(d) Abnormal sensitivity
(e) Malice

5. Who can sue? See 2. above.

6. Who can be sued?

(a) The creator
(b) The occupier N.B. The liability of an occupier in respect of nuisances
created by others whom he invites onto his land, including his contractors; &
his potential liability for nuisances either arising naturally or created by
trespassers (where liability depends upon proof of negligence).
(c) The landlord

7. The same rules for remoteness of damage apply as for negligence (The
Wagon Mound. (No 2)).

8. Consider possible defences

9. Remedies, including injunction (N.B. the principles in Shelfer's case).

B. Public Nuisance
1. Define public nuisance (the claimant need not have any interest in the land
affected-see e.g. Halsey v Esso Petroleum).

2. Explain what is meant by special damage

N.B. Tort actions in public nuisance are rare, since in most cases the
claimant would have a cause of action in negligence. Note, however, that
financial loss may amount to special damage for the purposes of an action.