21st-03-22

Q1. Property Damage- creator- inapplicable defence- damages-Ryland v Fletcher

Pursuant to the question, we understand that Donald and Claire moved into ”Shady Arces”. In May, they
started facing personal dis-comfort as Donald cannot write poetry and Claire’s yoga classes are
disrupted due to the noise from their neighboring daycare. Furthermore, they have also faced financial
loss and property damage as their flowers in the garden are crushed and the firework’s debris leaves
scorch marks on their roof. Therein, we need to ascertain whether Donald and Claire can initiate a claim
against their neighbor under the tort law of nuisance.

In order to initiate a claim for nuisance, we need to determine whether the parties are eligible to file a
claim for nuisance. According to HUNTER V CANARY WHARF, only propriety right holders can claim for
nuisance such that their enjoyment of land is being hindered or interfered. As per the facts, Donald and
Claire are the owners of the Shady Arces, hence, they will be eligible to file a claim under tort law of
nuisance.

Consequently, we also have to determine whether the neighbor can be sued. As per the tort law of
nuisance, the claimant can sue the creator of nuisance, an employer (if nuisance is created by his
employee or an independent contractor as seen in MATANIA V NATIONAL PROVINCIAL BANK), the
occupier (if he has adopted or continued with the nuisance as illustrated in SEDLEIGH DENFIELD CASE),
or a landlord such that he has given an express or an implied permission for the nuisance. As per the
case facts, we note that Donald and Claire will sue the creator of the nuisance, Ken, the neighbor.

Thereafter, to prove nuisance, the courts carry out a balancing exercise whereby, the courts considers
the owner’s rights to do what he pleases with his land is balanced against the rights of the neighbor to
not be unreasonably interfered. The test of nuisance was illustrated in the case SEDLEIGH DENFIELD V
O’ CALLAGHAN, where the claimant needs to prove unreasonable interference with the enjoyment of
land. The courts widely determine the nuisance considers the defendant’s action and its impact on the
claimant. Therein, factors such as the nature of locality, type of damage, malice intend and abnormal
sensitivity are considered by the courts.

In relation to the nature of locality, reliance is placed on STURGES V BRIDGMAN, where the courts
consider the area where the nuisance took place, to determine the threshold of nuisance. The threshold
of nuisance is low in residential area, whilst, it is high in an industrial area. As per the case facts, we note
that nuisance is occurred in a residential area, thereby the threshold of nuisance is low.

Nonetheless, in respect of the types of damage, the courts determine whether the nuisance caused
property damage or personal discomfort. Pursuant to WALTER V SELFE, the courts use a strict approach
in cases concerning property damage such that even one action makes the defendant liable (KIM
BOLTON FIREWORKS). However, in relation to the personal discomfort, the courts use a lenient
approach such that they determine the frequency and the duration of the act to infer whether the
defendant is liable (DE KEYSERS ROYAL HOTEL). Accordingly, we note that the defendant caused Donald
and Claire, property damage as their flowers were destroyed by the volleyball and the debris of the fire
works left scars on the roof of the Shady Acres, leading to financial loss. Pursuant to ST HELEN
SMELTING CO, the defendant was liable for causing damage to the claimant. Thus, the courts will use a
strict approach.
In respect of the personal discomfort, Claire’s yoga classes were disrupted and Donald couldn’t focus on
his poetry. Moreover, the parties could not open their window to enjoy the fresh air because of the
smoke emitted from the bonfire. Therein, the courts will also look at the frequency, and as per the case
facts, the evening entertainments (music, bonfire and fireworks) were carried out on weekends till
midnight.

Thereafter, we also note that Ken had a malice intend such that he change the net of the volleyball
because of which the ball crushed the flowers of the Shady Arce. Pursuant to CHRISTIE V DAVEY and
HOLLYWOOD SILVER FOX FARM CASE, the defendants were liable because of their malic intend.

Thus, taking the above arguments into consideration, both of the parties will be able to sue Ken for the
nuisance. Thereby, Ken will raise the defence of coming to the nuisance and argue that he has been
running the daycare, since last 25 years. The claimants came to the nuisance. However, as per BLISS V
HALL, the defence will fail on the grounds that it is unreasonable to expect that one will not purchase
the land due to the neighbor abusing their rights, re-affirmed in MILLER V JACKSON.

Furthermore, Ken can also raise the defence of public utility and argue that he has been conferring
benefit to the society by taking care of the children in his daycare. However, reliance will be placed on
ADAMS V URSELL, and the defence will fail on grounds of unreasonable justification for conferring the
nuisance.

Since, the defences raised by Ken will not be applicable, the courts will determine the remedies which
will be applicable in Donald’s and Claire’s case. There are two types of remedies available; injunctions
and damages. The courts grant full or partial injunctions, however, if the damage is insignificant, the
claimants are compensated for the damage as illustrated in SHELFER. Nevertheless, the courts consider
all of the factors as per COVENTRY V LAWRENCE, and damages can be awarded for property damage,
personal and pure economic loss but not for personal injury. Accordingly, we note that the claimants will
be compensated for the property damage (the flowers and the scars on the roof). Furthermore, the
courts may likely grant a partial injunctions to limit the evening entertainments of the daycare on the
basis that the daycare have been running from past 25 years and the locals might be benefiting from it.

Alternatively, the claimants can also initiate the claim under RYLANDS V FLETCHER, for the destruction
of the flowers by the ball and the burnt marks on the roof caused by the debris of the fireworks.
Therein, we will need to determine whether the claimants are eligible for filling the case against the
defendant. As the law is discussed above, we note that the claimants are the propriety right holders,
who will be eligible to file a claim against Ken, the creator of the nuisance.

However, the claimant will have to meet four prongs for a successful claim; the defendant will have to
bring something mischief on the land, which has to escape from the land, there has to be non-natural
use of land, and lastly, only damage have to be reasonably foreseeable. Accordingly, we note that the
volleyball crossed the defendant’s land to the claimant’s garden and the debris from the firework onto
the claimant’s roof fulfills the first condition because Ken brought the mischief on Donald’s and Claire’s
land. Furthermore, we note that both of things escaped from the defendant’s land. In respective of the
non-natural use of land, it can be seen that playing volleyball in the garden comes under the umbrella of
natural use of land. However, using fireworks is a non-natural use of land just as the storage of
chemicals in the case of TRANSCO. Fireworks are not normally stored or used in a residential area.
Furthermore, we note that it is foreseeable that the property may be destroyed by the volleyball and
the debris of the fireworks. However, as the football did not meet the 3 rd condition, the claimants will
not be able to sue Ken under Ryland v Fletcher. Whilst, in respect of the scars from the firework’s debris,
Ken will be liable. To conclusion, the parties will be compensated for the property damages caused by
the debris.

Q2. Private nuisance-public nuisance (for property damage and personal injury ‘persistent cough’) -
Ryland v Fletcher (alternative claim).

Pursuant to the question, we note that the Yuri, Tanya and Jason are suffering from property damage
and personal discomfort because of the factory “Bio-Sure”. It is noted that the parties’ brickwork has
been damaged due to the debris emitted from the smoke cloud which is produced by the factory. In
respect of the personal dis-comfort, the parties can smell a terrible odor emitted by the factory, Tanya’s
open-air yoga classes have been disrupted by the smell and Jason is suffering from a persistent cough.
We need to determine whether the parties can initiate a claim against the Bio-Sure under the tort law of
nuisance for causing a hindrance in the parties’ enjoyment of land.

In order to initiate a claim, we will need to determine whether the parties are eligible to file a case for
nuisance. Pursuant to HUNTER V CANARAY WHARF, only propriety right holders can file a claim for
nuisance. According to the case facts, it is seen that Yuri and Tanya want to sell the house, hence, they
are the owner of house. Since they are the owners, only Yuri and Tanya have the propriety rights and
are eligible to file a case, even for their son (Jason), under the tort law of nuisance.

Therein, we need to determine whether Bio-Sure can be sued. As per the law of nuisance, the claimant
can sue the creator of the nuisance, the employer (if his employee is responsible for nuisance), an
occupier ( if he adopted or continued with nuisance as illustrated in SEDLIEIGH DENFIELD), or the
landlord (if he has given an express or an implied permission for nuisance as illustrated in TETLEY V
CHITTY). As per our case, we note that the parties will fill a claim against the creator of the nuisance,
Bio-Sure because they are the creator of the nuisance.

Subsequently, the parties will have to prove nuisance such that their rights were unreasonably
interfered to enjoy the land. The courts carry out a balancing exercise between the rights of one’s
enjoyment of land with one’s right to do whatever on his land. Pursuant to SEDLEIGH DENFIELD,
reasonable user test is applied to determine the balance between the rights of an occupier to do what
he likes on his own land and the right of the neighbor to not be reasonably interfered. The courts widely
determine such rights by taking every factor into consideration i.e. the nature of locality, the type of
damage, malice intend, and even abnormal sensitivity if the unique characteristics on a property is
damaged (ROBINSON V KILVERT).

Accordingly, we note that Bio-Sure is located in a country side, but there are also small villages in the
neighboring area, hence, the factory is located in a residential area. Therefore, pursuant to STURGES V
BRIDGMAN, the courts will determine the threshold of nuisance which will be a low for a residential
area.

Furthermore, we note that the parties have not only suffered from property damage but also from
personal discomfort. As per WALTER V SELFE, the courts strictly treat the property damage such that
even one event will make the defendant liable (KIM BOLTON FIREWORKS). However, in terms of the
personal dis-comfort, the courts are lenient and consider the duration, or the frequency to hold the
defendant liable as seen in DE KEYSERS ROYAL HOTEL. As per case facts, parties’ brickwork has been
destroyed which is a property damage. Furthermore, the personal dis-comfort in the form of bad smell
is felt every day in the evening. Therein, Bio-sure will be held liable for the nuisance.

However, Bio-Sure can raise a defense of planning permission whereby, they were given government
permissions and permits to open a factory. Pursuant to WHEELERS V JJ SAUNDERS, planning
permissions is not an immunity in nuisance which was re-affirmed in CONVENTRY V LAWRENCE, where
the courts held that the defendant cannot benefit from the planning permission in the cases of
nuisance. Thereby, the defense will be inapplicable.

Nevertheless, Bio-Sure can even raise the defence of public utility and argue that they generate
thousands of employment opportunities for the locals and not only benefit the society socially but
economically too. However, reliance will be placed on ADAMS V URSELL, and the courts will reject such
justification of Bio-Sure for creating nuisance. Therefore, this defence will fail too.

Thereafter, the courts will have to determine the remedy for the parties. Pursuant to Lord Bingham in
TRANSCO CASE, damages or injunctions are not awarded for personal injury or death, nor can it raise
the claim under the tort law of nuisance on grounds that it is not related to any right of enjoyment of
land. Therefore, the courts will only be able to cater the property damage or personal discomfort. The
courts can grant an injunction (full or partial) or compensate for the damage in lieu of injunctions.
Pursuant to SHELFER, the courts consider the size of the damage and whether it can be compensated.
However, pursuant to CONVENTRY V LAWRANCE, the courts now also consider the factor such as
“public interests”. Since the courts have discretionary powers in awarding the remedies, we note that
courts Bio-Sure will have to compensate for the property damage. Furthermore, the courts can even
award partial injunction on the grounds to restrict the factory work in the evening to prevent the
emission of bad smell in evenings.

PUBLIC NUISANCE CLAIM AGAINST BIO-SURE

Since, personal injury cannot be compensated under private nuisance, the parties can initiate a claim for
Jason’s persistent cough under the public nuisance. In order to file a case under the public nuisance, the
claimant needs to be a propriety right holder (as defined above). We note that Jason is the son of Yuri
and Tanya, and assuming that Jason is a minor, he will not have propriety rights. Thus, Yuri and Tanya
can file a claim against Bio-Sure.

However, for a claim to be successful, reliance will be placed on ATTORNEY GENERAL V PYA QUARRIES
LTD, where the claimant will have to prove that ‘ a class of Her Majesty’s ’are being affected by the
defendant’s act, or the claimant has suffered a special damage. Special damage refers to damage
suffered by the public which needs to be direct, substantial and may come under personal injury,
property damage, financial loss i.e. loss of business, delays and all inconveniences. If other villagers have
also suffered from persistent cough or other illnesses due to the smoke emitted from the Bio-Sure
factory, the claimants will be able to prove special damage for personal injury.

Furthermore, we also note that the villagers have suffered from property damage in the form of broken
windows because of the vibrations from the factory. Thereby, by complaining it to the Attorney General,
a successful claim against Bio-Sure can be filed in Attorney General’s by way of relator action, or under
the local authority (S 222 of the Local Government Act, 1972), under the tort law of public nuisance.
Since the public at large have suffered from the property damage, the courts can grant damages in lieu
of injunctions for compensating the loss of property damage.

CLAIM UNDER RYLAND V FLETCHER

Alternatively, Yuri and Tanya can even file a claim against the Bio-Sure under Ryland v Fletcher on
grounds that the smoke emitted from the factory escaped from their land and caused foreseeable
damage on the claimant’s property.

Therein, the claimants should be the propriety right holders and assuming if the claimants are the owner
of their house, they will be eligible to initiate a claim against the factory. However, the claimants will
need to satisfy four conditions for a successful claim such that the defendant brought something on he
claimant’s land which caused mischief, it escaped from the land, there was non-natural use of land and
the damages were reasonably foreseeable. According to the case facts, we note that the smoke emitted
from the factory destroyed the claimant’s brickwork, thus caused mischief. The smoke cloud was
produced by the factory work and escaped from their land onto to the claimant’s land. Furthermore, we
also note that the smoke being produced on the land is a non-natural use of land, thereby reliance will
be placed on CAMBRIDGE WATER CASE, where the storage of chemicals in the factory was held to be
non-natural use of land. It is also seen that the damage caused by the smoke cloud is reasonably
foreseeable as the smoke cloud can damage the roof of the houses and the brickwork of the walls. Since
all of the prongs are met, Bio-Sure will be liable for the caused damage under the tort law of public
nuisance.

Subsequently, the courts will determine the damages which will be awarded to the claimants. They can
grant compensation for the property damage, thus, Bio-Sure will have to compensate the claimants.

18-04-22

Q1.

Pursuant to the question, it is noted that MI factory operations have caused personal dis-comfort to Lisa
and other inhabitants of village. Furthermore, Larry has suffered from property damage because of the
vibrations from the factory and her son’s asthma has been aggravated. It is also seen that Dinesh’s
ingredients have been contaminated due to MI’s vaccines blowing on his area. therein, we need to
determine whether the parties can initiate a claim against MI under the tort law of nuisance. Each case
will be discussed separately.

Lisa’s personal discomfort and property damage

In order to file a case under the tort law of nuisance, we need to establish whether the claimant is
eligible to file a case for private nuisance. Reliance will be placed on HUNTER V CANARY WHARAF,
where it was established the only the propriety right holders can initiate a claim under the private
nuisance which was re-affirmed in TRANSCO CASE. As per the case facts, assuming that Lisa is the owner
of the house or a lease tenant, she will be eligible to file the case.

Therein, we also need to determine whether the potential defendant can be sued under the case of
nuisance. Pursuant to the law of nuisance, a claimant can file a claim against the creator of nuisance,
the employer (if their employee created nuisance or the independent contractor as illustrated in
MATANIA V NATION PROVINCIAL BANK), the occupier (if he has adopted the nuisance or continued
with it as illustrated in the case of SEDLEIGH DENFIELD), and the landlord (if he has given an express or
implied permission as seen in TETLEY V CHITTY). According to the case facts, since MI factory is the
creator of the nuisance, MI will be the potential defendant and will be sued.

Consequently, for a successful claim, we need determine whether the courts will consider the
interference to Lisa’s enjoyment of land by MI’s operation as nuisance. The case of SEDLIEGH DENFIELD
set out the test of nuisance such that the courts determines one’s right of use of land and another’s
interference in the right of enjoyment of his land. The courts undertake a balancing exercise such that
“there must be a balance between the right of the occupier to do what he likes on his own land and the
right of another to not be interfered with”. The courts widely apply the reasonable user test on the
usage of the land and considers the impact on the claimant caused by the defendant’s action. Thereby,
the courts consider the factors such as the nature of the locality to determine the threshold of nuisance,
the type of damage caused (property damage or personal discomfort), whether there were elements of
malice in the defendant’s action, and abnormal sensitivity (if applicable).

Hence, in respect of the nature of the locality, reliance will be placed on STURGES V BRIDGMAN, where
the courts will determine the threshold of nuisance as per the residential area, commercial area or an
industrial area. Pursuant to case facts, it is noted that the MI is located in an industrial estate, thus the
nuisance threshold will be high as compared to the threshold of a residential area. However, as there is
a village located near the industrial area, the courts will adjust the threshold of nuisance depending on
the dynamics of the area.

Furthermore, we note that her windows have been destroyed which is a property damage. Pursuant to
WALTER V SELFE, courts are strict in the cases of property damage and even one event raises liability as
illustrated in KIM BOLTON FIREWORK CASE. Therefore, MI will be liable for the property damage.

In respect of the personal discomfort, reliance will be placed on DE KEYSERS ROYAL HOTEL, which held
that the courts use a lenient approach for personal dis-comfort and considers the duration and
frequency of the act committed by the defendant. As per the case, MI is operating all day and night thus,
the frequency of the lorries is high as they are operating during the day and all night. Although, it is an
industrial area, it can be seen that the threshold of nuisance will be crossed. Therefore, MI will be liable
for private nuisance.

However, MI can raise the claim of public utility on the grounds that they are making vaccines which
benefits the economy as the factory employees a sizeable number of locals, thereby, generate income
for the locals. Furthermore, the population benefits from vaccines as vaccines prevents the chance of
getting sick. Reliance will be placed on ADAMS V URSELL, where the courts held that public benefit
cannot be raised to justify nuisance. Thus, the defense will fail.
Thereafter, the courts will have to determine the remedies which can be granted to the claimant. The
remedies available under private nuisance are injunctions (full or partial) and as per SHELFER, the courts
even award damages in lieu of injunctions. The courts consider all of the factors including the public
policy while deciding the remedy (CONVENTRY V LAWRENCE). Therefore, as per our case, the courts will
award damages for the property damage, thus MI will have to compensate Lisa. However, for the
personal discomfort, assuming that the demand of the vaccine has increased due to a medical
emergency such that there is a need for that vaccine which MI are producing, thereby, the courts will
not grant an injunction. However, if that is not the case, therefore, a partial injunction will be granted to
restrict the factory work after evenings.

Discomfort of the residents and the Archie’s aggravated asthma

As per the question, it is seen that other residents’ enjoyment of land have also been interfered by MI’s
operations. Since a public at large is being affected, they can jointly apply a complaint to the Attorney
General to initiate a claim under the public nuisance.

In respect or Archie, it is seen that his asthma has been aggravated due to the operations of MI. Therein,
he will also be able to compensate for his personal injury under public nuisance as he cannot file a case
under private nuisance on grounds that assuming that he is a minor, does not have propriety rights and
personal injury cannot be compensated under private nuisance.

Consequently, as Archie does not have propriety rights and the villagers have not faced any special
damages (additional losses, delays, personal injury, property damage, etc.), they can jointly apply an
application to the Attorney General for initiating a case on behalf of them. An Attorney General can file a
case pursuant to the Relator Act, or via a local authority, S 222 of the Local Government Act, 1972 which
was illustrated in the case STOKE ON TRENT CITY COUNCIL V B AND Q (RETAIL).

If, the case is successful, the courts will determine the damages as per their discretion. As per the law of
damages which is discussed above, the courts consider all of the factors, even public benefits when
deciding the remedies. The courts order MI to compensate Archie for aggravation of asthma, whilst they
can order a partial injunction for restricting the factory work after last hours as per the subject of the
assumptions (discussed above).

Contamination of the ingredients

As per the question, it is seen that Dinesh’s ingredients for making cheese have been contaminated by
MI’s vaccines as the vaccine packages blew to his storage area. Since the vaccines escaped from
another’s land, Dinesh can file a claim of nuisance under the case of RYLAND V FLETCHER.

In order to seek compensation under nuisance, the claimant will have prove that he is a propriety right
holder, which will make him eligible to file a nuisance case under R v F. Assuming that he owns the
cheese making factory, thereby, Dinesh will have the fee simple of the land and will be eligible to initiate
a claim under R v F.

Thereafter, the claimant will have to establish 4 prongs to seek damages. One of the prongs that the
claimant will have to prove is that defendant have to bring something on the land which does not need
to be dangerous, but causes mischief. Pursuant to RYLAND CASE, the water was held to be mischief.
According to Dinesh’s case, the packages of the vaccines will be considered mischief since, they were
found on the claimant’s land and contaminated his ingredients. Therein, there needs to be an escape
from the defendant’s land. The case READ V LYON, illustrated escape , and as per Dinesh’s case, it is
seen that the packages were blown by the air, therefore, there was an escape from the defendant’s
land. Thirdly, we will need to prove that there is a non-natural use of land such that the land is used for
unusual purposes. In CAMBRIDGE WATER CO CASE, the storage of chemicals was held to be a non-
natural use of land whilst the water pipes in the case of TRANSCO, was held to be a natural use of land.
Accordingly, it is unusual to store the vaccines packages because the packages may consist of some
many different dangerous chemicals which are used to produce the vaccines. Hence, there was non-
natural use of land. Lastly, we will need to establish that the damages were reasonably foreseeable,
however, the escape does not need to be foreseen. We note that is unlikely foreseeable that the vaccine
packages contaminate the ingredients. Since the damage is unforeseeable, Dinesh will not be able to
establish his claim and seek compensation for the contamination.