Nuisance

NUISANCE

Nuisance entails an unreasonable interference to the beneficial interest in land. However, the interest in land does not deal with the possessory interest in land from direct physical intrusions, such as trespass. Instead the interest in land is based on the use and enjoyment of land.

Nuisance deals with the context of balancing of the respective land interests of the defendant and the plaintiff. There is no absolute right to the use of land. Individuals may not exercise nuisance to the neighbours or the public by excessive or unreasonable conduct.

VICTIMS OF NUISANCE

A victim of nuisance may seek:1. Damages2. An injunction or,3. Abatement , which is self help, in

removing or solving a nuisance without using legal recourse.

DEFENCES

Defences for nuisance include:1. Statutory authority;2. Reasonable conduct under the circumstances;3. Contributory negligence4. Act of a stranger; and5. Necessity, which consists of actions to avoid

imminent peril which unavoidably causes damage to others, such as a barricade against water which incidentally causes flooding to neighbouring land.

PRIVATE NUISANCE

This entails unreasonable interference with use, comfort, convenience an enjoyment of land; which is sufficiently disruptive or harmful to warrant redress. There must be an interest in land to initiate a lawsuit. For Example, a relative may not sue without any interest to claim in the land.

The law seeks to set a balance of the right to use one’s property with the right for others to enjoy the use of their land without unreasonable inference. Therefore, legal intervention will be exercised only for excessive use of property causing inconvenience beyond what one may reasonably bear, based on standard of comfort of time and place.

The test for private nuisance consists of:1. Whether conduct is reasonable having

regard to the fact that neighbours are present, i.e. whether interference is tolerated by the ordinary occupier of land in the locale based on:

A. Severity of interference, such a s nature, duration, time of occurrence, and effect;

A.Character of locale, i.e. whether the locale is residential or commercial;

B.Utility of conduct, including whether the defendant’s acts are of value to community, and importance of enterprise;

C. The presence of malice by the defendant;D.Sensitivity of the use interfered with,

and

1. Whether the injury or interference was substantial based on:

A. Material property damageB. Substantial interference with use

and enjoyment of land; orC. Substantial interference with

other property rights of access.

EXAMPLES

Overhanging branches, noise, dust, foul odour, barking dogs, bright lights, machinery, traffic, pollutants, and obstruction of sunlight or view. It must be salient that there is a balance of competing interests of the use of the defendant’s land and the enjoyment of the plaintiff’s land.

In Greenidge v Barbados Light and Power Co. Ltd. It was held that the defendants were NOT liable in nuisance for discharging offensive fumes and smoke over property that caused excessive noise which affected the plaintiff's apartments. The decision was based on the lack of evidence that the ordinary reasonable resident was inconvenienced.

HUNTER v CANARY WHARF [1997] upheld that a person who has NO interest in land may not sue for nuisance.

PUBLIC NUISANCE

It entails the unreasonable interference with public interests or harmful activity affecting land of the general public or segment of the public. It deals with acts which affect the general community or class of individuals. Although it is a crime, there must be particular damages to make public nuisance tort.

Public nuisance differs from private nuisance in that the negative consequences of the nuisance must be so widespread or indiscriminate that it would be unreasonable to expect one person to stop it alone.

Public nuisance entails affecting the reasonable comfort and convenience of a class of citizenry. However, suffering from direct and substantial injury that is different or greater than that which is common to all would have recourse.

Examples include: a factory emitting fumes, an obstruction in the public street or waterway, right of passage, noxious fumes, polluted air or polluted water.

Public Nuisance is a CRIME. However, it is deemed to be a tort ONLY where it affects an individual in a different way or to a greater extent than the general public (particular damage)

The nuisance must materially affect the reasonable comfort and convenience of life. An individual would have to show that he or she sustained particular damages of a different kind or degree for a public nuisance suit to have standing.

For public nuisance to be successful in a cause of action, one does not need to prove that every member of the community is injured . One need only show that a representative cross section of the community was affected or that there is a large collection of private nuisances.

Public nuisance however, affects general, rather than particular interests. It deals with the cumulative effect of people living within the sphere of influence. The distinction between public and private nuisance is tantamount to deciding when a group becomes a crowd and thus, the standard of public as opposed to private nuisance may be subjective.

In Chandat v Reynolds Guyana Mines Ltd., it was held that farmers who alleged that their crops were damaged by dust from a bauxite company were unable to recover damages under public nuisance individually, because none of the farmers could show particular damage.

RYLANDS AND FL

ETCHER

LIABILIT

Y

In the case, it was held that the defendant will be liable despite the lack of any negligence or fault. A person who brings on his land and collects and keeps anything likely to do mischief if it escapes will be liable for all damages which is a natural consequence of the escape.

There must be an escape of an accumulated thing from the land which affects other land. There must also be a special use of the land that increases the danger to others. Therefore, the courts can extend or restrict liability under the rule.

Examples include water in a reservoir, chemicals, gas, electricity, sewage, fire and crude oil.

Defences include:1. Consent2. Contributory negligence3. Acts of God (usually unsuccessful)4. Acts of strangers