LAW DISCRIMINATES AGAINST PARTNERS & CHILDREN
In order to succeed in an action of private nuisance there must be an unreasonable interference with a person’s use or enjoyment of land, or some right over or in connection with it. If a potential litigant is a owner or tenant of a house they will have no difficult in establishing their right as a claimant: Malone v Laskey. It has been established through a number of cases that noise may constitute a nuisance, a case in point is Tetley v Chitty however not all instances of noise interference will give rise to liability as a certain amount of give and take between neighbours is expected particularly as our island becomes increasingly crowded . The issue of locality is important and in the leading case of Sturges v Bridgman Lord Justice Thesiger stated that ‘what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey’. If the home is located next to a factory suggesting a mixed industrial and residential area, it might be felt that certain ‘nuisances’ are a ‘natural’ hazard of such places. Nonetheless, the locality argument is rarely ever effective against claimants with a good prima facie case: Rushmer v Polsue & Alfieri Ltd. If from the facts it appears that the noise is generated at night, time and duration of interference are factors which the court will be taken into consideration. The courts will also consider whether the litigant is abnormally sensitive. In Robinson v Kilvert it was held that the plaintiff could not succeed as the damage was solely due to the sensitive nature of his business, this could prove fatal to a claimant’s case however, in McKinnon Industries v Walker it was held that as long as a nuisance has been established that a claimant may recover for interference with a sensitive use, hence if the claimant can establish that the factory noise is an unreasonable interference with the use of his premises then he will have a right to a remedy in nuisance.
The factory owner may wish to argue that the claimant came to the nuisance however this is generally not recognised as a good defence: Bliss v Hall.
In respect of the damage to a house, car and other such possessions, the claimant may be able to bring an action under the rule in Rylands v Fletcher. In order to succeed the defendant must have bought a non-natural thing onto land, the thing must escape and cause foreseeable damage. An example would be a factory emitting corrosive smuts. It must be assumed that the corrosive smuts have been created from chemicals employed by the factory and bought into the factory for use there. This will constitute a non-natural use of land as seen in Halsey v Esso, furthermore the more dangerous a thing the more likely it will be deemed a non-natural use: Transco PLC v Stockton Metropolitan Borough Council. There will be an issue of escape as the corrosive smuts come from the factory and because of its corrosive qualities it gives rise to foreseeable damage. Under the Rylands rule compensation for damage to property is recoverable.
The Claimant’s Partner
Wives and partners of claimants may face other problems as they will need to establish a legal interest in a property, e.g. joint tenant/owner. This is crucial as the essence of a case will be that the respondents activities have unreasonably interfered with her enjoyment of her/his land: Walter v Selfe. In Hunter v Canary Wharf the House of Lords held that there should be a substantial link between the person and the concerned land. Where property is the matrimonial home such a link may be possible especially given that a ‘tolerated trespasser’ in Pemberton v Southwark London Borough Council was able to establish such a connection, it therefore appears that partners will have a prima facie case against the a respondent, though they will need to establish that the respondent’s conduct is unreasonable.
The Claimant’s Child
The problems for a child surrounding an action in private nuisance concern the fact that as a child of the householder they may have difficulty establishing a proprietary interest. The court of appeal dealt with a similar problem in the leading case of Khorasandjian v Bush where it boldly overturned the requirement for such an interest. In 1996 the House of Lords in Hunter v Canary Wharf overruled Khorasandjian, however, Article 8 of the European Convention for the Protection of Human Rights and Fundamental freedoms recognises the right of children to be protected from nuisance in the home and case law of the European Court of Human Rights reflects this view.