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Tort-Private nuisance III

Updated on July 21, 2017

If an act undertaken to prevent discomfort to the owners of adjoining lands had been successful in the past but because of a sudden change in conditions it was found that the measures that were implemented were not adequate and caused discomfort or displeasure to the owner of an adjoining property, the failure to prevent the discomfort may be deemed or regarded as nuisance.

In Sedleigh-Denfield v O’Callaghan (1940) the council adopted measures to drain excessive water and to prevent flooding to adjoining lands. The work was carried on periodically over three years and was successful. However, there was a sudden downpour and the excess water that resulted from the heavy rain caused the adjoining property to be flooded. The plaintiff, the aggrieved neighbor sued. It was held that despite the measures that were taken in the past the defendants were still liable because their failure had caused discomfort to the plaintiff.

Business owners, regardless of the nature of the business they’re in, have a duty to ensure that that the fumes and particles that are released from their business premises do not cause discomfort to adjoining land owners.

In McKinnon Industries v Walker (1951) the defendant was an iron and steel manufacturer whose manufacturing facility was located on the adjoining property or the property next to the plaintiff’s.

The plaintiff had a nursery which included rare orchids and as a result of being exposed to the fumes that were released from the defendants factory the orchids wilted and would not flower.

In addition to that the dust particles that were released from the factory also clung tenaciously to the hedges and shrubs and deposited themselves on the plants and caused many of the plants to wither and die.

The plaintiff brought an action in court and the court in line with the decision in Bliss and Hall (1838) and Adams v Ursell (1913) found for the plaintiff and decided that the fumes and other particles that were released from the defendants’ factory were a nuisance.

The act that constitutes nuisance does not always need to be noisy. The very fact that it is visible is sufficient for the plaintiff to seek redress in court and the court, if it deems it reasonable that such acts should be done with discretion and not in plain view of the plaintiff, will grant an injunction.

In Thompson-Schwab v Costaki (1956) the defendant converted his premises to a brothel the plaintiff was able to see all the clients that entered and left the brothel. The plaintiff felt uneasy and brought an action in court. The court found for the plaintiff and decided that the defendants’ actions constituted nuisance.

In addition to noise, fumes and odors, toxic substances that emanate from the land and permeate the surroundings are also regarded as nuisance and the land owner has to take reasonable care to ensure that such substances do not cause any discomfort to his or her neighbors.

In Halsey v Esso Petroleum (1961) acid flakes from the defendants’ property damaged a car belonging to the plaintiff and the disgruntled plaintiff brought an action in court. The court found for the plaintiff and held that the defendant owed a duty of care to ensure that any substances that escaped from his or her property did not cause any injury to others or cause damage to the adjoining properties.

Property owners must also take care to ensure that materials that belong on their property do not make their way to an adjoining property and cause damage or discomfort to owners of the adjoining property.

In British Celanese v Hunt Ltd (1969) a metal foil from the defendants’ premises was blown by the wind to an electric substation resulting in a power outage that caused a blackout in a nearby industrial estate.

That was the second time it had happened and the plaintiffs sought a remedy in court. The court held that that such occurrence were a nuisance to others and found for the plaintiff.

In Bone v Seale (1975) the defendants operated a pig farm. The business was a success and the defendants expanded their operations towards the plaintiff’s property. Pigs however were not the cleanest of animals and the resulting smell caused discomfort to the plaintiff. The plaintiff turned to the courts for assistance. The court in line with the decisions in Bliss and Hall (1838) and Adams v Ursell (1913) held that the defendant had a duty to ensure that no foul odors escaped from their property and caused distress to the plaintiff.

© 2017 Kathiresan Ramachanderam and Dyarne Jessica Ward

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