The unlawful interference with a person’s enjoyment or use of land, or some right over or in connection with is nuisance (Winfield and Jolowich on tort) examples are noise, fumes, dust e.t.c. There are 3 different actions in nuisance but the ones of concern are private, public and Rylands and Fletcher (strict liability).the objective of nuisance is to protect an individual’s interest in land. The scenario to be analysed below is to advise Banger of his potential liability in tort since the occupier/ controller of the land (country house), and the creator of the nuisance. Therefore, it is a general duty that an occupier should take reasonable care to check his land for likely hazard that can cause a nuisance (Goldman v Hargrave 1966).
A) Catherine v Banger (private nuisance)
Issue: whether Banger is liable for private nuisance due to the permanent smell of sulphur in Cat’s garden and broken windows to her green house as a result of his fireworks
who can sue: only the claimant who has an interest in the land or exclusive possession of the land can sue (Hunter v Canary Wharf 1996) as initially held in (Malone v Laskey 1907). Cat seems to be either the owner/tenant as she lives next door to the occupier (banger) of the land.
Who can be sued?: the creator of the nuisance/occupier of the land can be sued who in this case is banger. He stores chemicals like sulphur/potassium nitrate and charcoal and creates fireworks. According to the case of Lippiat v South Gloucestershire (1999) it states that the nuisance must come straight from the land
What is actionable: Cat has to prove damage because it is not actionable per se. The likely form of nuisance is intangible damage due to the substantial interference of the permanent smell of sulphur preventing her from using her garden and the noise from the fireworks on Sunday night causing lack of sleep. On the other hand, the tangible damage occurs due to physical damage broken glass caused to her green house (Helen v Tipping 1845).
In order for these nuisance to be actionable, the courts take into account the following factors; Locality, Duration, Sensitivity, and Motive. According to the case of Sedleigh v Denfield O’Callaghan 1940, Lord Wright stated that a balance is needed between the right an occupier has with his land, and the right of the neighbour not to be interfered with.
Locality: the area where the occupier resides is a village therefore a reasonable man would be aware that the place can only tolerate reasonable noise. Following the case of Sturges v Bridgeman 1879, what is a nuisance in Belgravia would not necessarily be a nuisance in Bermondsey as the latter involved a smelly industry. According to Helen v tipping 1865, where a tangible damage has occurred like the instant case, locality is immaterial
Duration: the more persistent the nuisance, the more unreasonable (De Keysers Royal Hotel 1914). Here it is a permanent smell causing her the inability to use her garden, inability to sleep on Sunday night due to the noise from the fireworks running into small hours. This is not reasonable. The damage of broken windows 3 times in 2 months shows its unreasonableness (De keysers). In the case of Crown cruises v Kimbolton firework (1999), although it was a short duration, but the damage was foreseeable (possible to break windows of residents
Abnormal sensitivity: the claimant must not be abnormally sensitive (Robert v Kilvert (1889). She doesn’t seem abnormally sensitive because she merely wants to use her garden and sleep peacefully. On the other hand, the defendant should foresee that his nuisance would be of relevant damage to Cat (Network Rail V Morris 2004). she lives beside him so he should have foreseen that his acts would be of nuisance to her.
Motive: malice is insufficient (Chistie v Davey). On the facts, it doesn’t state that Banger is malicious in his actions because he was only...
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