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Tort-Private nuisance VI
When deciding whether a nuisance claim would be successful or otherwise the court will take into account the remoteness of damage. The test to determine whether damage is foreseeable is the same test that is used in negligence i.e. the test in the Wagon Mound (1) (1961).
In the Wagon Mound (1) (1961) the defendant’s vessel the Wagon Mound was docked in a wharf in Sydney and unknown to the defendant the boat leaked oil and the resulting fire caused damage to not only the defendant’s vessel but also to the wharf and to 2 other vessels. The court had to determine the scope of the defendant’s liability. It was held that the defendant was only liable for the damages that he could foresee.
In Cambridge Water v Eastern Counties Leather plc (1994) the defendants were owners of a tanning factory i.e. their business was the business of converting animal hides and skins into leather which is then used to make consumer items like wallets, belts etc. The conversion process required the use of various chemicals and some of the chemicals seeped into the ground and made its way to boreholes that supplied water to consumers. The plaintiffs sued.
The court rejected their claim basing its decision on the fact that it was not reasonably foreseeable that spillage from the factory would seep into the ground and contaminate the boreholes.
It is worth comparing the decision in Cambridge Water v Eastern Counties Leather plc (1994) with the decision in Crown River Cruises v Kimbolton Fireworks (1996).
In Crown River Cruises, the defendants were organizers of a fireworks show and some of the debris, from the show, landed on a barge belonging to the plaintiff and subsequently set the barge on fire. The plaintiff sued and the court in line with the decisions in Goldman v Hargrave (1967) and Leakey & Ors v National Trust (1980) held that the defendants were liable.
Where two parties have an interest in the same land, the normal rules with regards to nuisance will apply. However, if there is a conflict between public interest and private interest, private interest must give way to public interest.
In Wheeler v JJ Saunders (1995) both the plaintiff and the defendant had an interest in the land and were at one stage working together before they had fallen out.
The plaintiff who had a smaller interest in the land had a farm house and some holiday cottages that he rented out to suitable tenants.
The defendant had a pig farm and a couple of years after the plaintiff and the defendant had fallen out the defendant decided to expand his business.
The farm grew larger and moved closer to the holiday cottages and the plaintiff brought an action on the grounds that the resulting smell and the animal discharge from the farm was a nuisance to the holiday makers who rented his cottages.
In line with the decision in Bone v Seale (1975) the plaintiff was successful. Both parties had a proprietary interest in the land and it was a matter of one proprietary interest against another.
In Hunter v Canary Wharf (1998), the case that overruled Khorasandjian v Bush (1993), there were a large number of claims made against the developers of Canary Wharf Towers by residents living in the Isle of Dogs and the claim was based on the fact that the erection of the towers interfered with television reception of those who lived in the Isle of Dogs. Additional claims were also made against London Docklands Development Corporation for excessive dust and other pollutants that resulted from the erection of the towers. A large number of the claimants did not have any proprietary interest in the property.
The court overruled Khorasandjian and decided that in order for the claimants to be successful they must have a proprietary interest in the property. The decision however is most likely based on public policy and public policy supplants individual needs.
Before an action in nuisance can be successful, the action must first be deemed reasonable. In London Borough of Southwark v Mills and others (1998) the defendants were tenants in a block of council flats. The defendants brought an action against the council alleging that the lack of soundproofing was a source of disturbance that prevented them from enjoying the benefits of the property that they were occupying. The plaintiffs sued. They were unsuccessful.
The court held that any action in nuisance must be reasonable and it was not reasonable to have the council soundproof its buildings.
© 2017 Kathiresan Ramachanderam and Dyarne Jessica Ward