<\/p>\n
The foremost cause of action against Harrington arises in the tort of \u201cnuisance\u201d- commonly defined as \u201cinterference for a substantial length of time by owners or occupiers of property with the use or enjoyment of neighbouring property\u201d. As such, nuisance may be public or private in nature, i.e., while the former involves indiscriminate widespread effects on a community or class of persons so as to constitute a criminal offence, the latter concerns the harm to the plaintiff in particular. In the absence of any mention of other complainants, apart from David\u2019s family, the given facts reveal a case of the latter category, i.e., a tort of private nuisance.<\/p>\n
The tort of \u201cnuisance\u201d premised on the maxim sic utere tuo ut alienum non laedas, arises where a person makes such use of his property unreasonably and unnecessarily so as to cause inconvenience to his neighbour. Such inconvenience may be in the form of (a) interference with the plaintiff\u2019s beneficial use of the property, and\/or (b) physical injury to the plaintiff\u2019s property. Notably, the plaintiff\u2019s burden of proof is more onerous in case of the former, as upheld in St. Helens Smelting Co. v Tipping. The present facts entail potential liabilities founded on both of these forms of nuisance, elaborated below.<\/p>\n
It is alleged by David\u2019s family that the noise all throughout day and night from the factory and the movement of wagons has caused them loss of sleep. Further, they are unable to sit out in the garden due to the noise and dust emissions, which have also impacted their trees and shrubs. Moreover, the dust emitted by Harrington has injured the health of David\u2019s wife, who, as a consequence, is required to use inhalers on a regular basis. Overall, owing to Harrington\u2019s operations, they are allegedly prevented from the enjoyment of their property.<\/p>\n
Whether all of these constitute a prima facie case of nuisance by interference with David\u2019s beneficial use of property, depends upon the test of reasonability, i.e., whether a reasonable man living in that locality would take the same view of the matter. Explained by Lord Macmillan in the case of Glasgow Corporation v Muir, a reasonable man connotes \u201ca person whose notions and standards of behaviour and responsibility correspond with those generally obtained among ordinary people in our society at the present time, who seldom allows his emotions to overbear his reason and whose habits are moderate and whose disposition is equable\u201d. Thus, while there is no strict formula to define what precise level of noise, dust or smoke would suffice for a claim of nuisance, courts have ordinarily looked into the substance of the interference to decide that noise causing deprivation of sleep, or fumes damaging trees and shrubs, as in the present facts, constitute interference with comfort and enjoyment of property, and thus, a tort of nuisance. This is more so, because of the continuity and frequency of such noise and emissions which are relevant in establishing that Harrington has created a situation qualifying to be a potential nuisance.<\/p>\n
Considering that such claim is based on the test of reasonability, an inconvenience or interference with enjoyment necessarily depends upon the circumstances of the place or location where the alleged wrong occurs. Courts have ruled that one must pay heed to a property\u2019s surroundings when determining whether a nuisance exists. Thus, one \u201cwho dislikes noise must not set up his abode in the heart of a great city,\u201d and likewise, \u201che who loves peace and quiet must not live in a locality devoted to business of making boilers and steamships\u201d. In other words, the standard of comfort and convenience attributable to the plaintiff is lowered in certain localities. Accordingly, Harrington may assert that as David\u2019s house was located just opposite to the Edward\u2019s industrial estate, the expected levels of noise and emissions in such locality were higher than a purely residential area, which lowers the standards of reasonable comfort, convenience and enjoyment attributable to David\u2019s property. Hence, failing the reasonability test in the specific circumstances of the place, Harrington may plead to ought not be held liable for the tort of nuisance.<\/p>\n
Further, without prejudice to the above, Harrington may seek to exclude liability for the damage to the 15 years\u2019 old rose tree, which was a special and delicate feature from a horticulture standpoint. Similar stance was taken in respect of damage to certain orchid plantations by the emissions and fumes from the defendant\u2019s factory in the case of McKinnon Industries v Walker. Additionally, as the car owned by David\u2019s son- Wally was parked on the road outside the house, it did not fall within the ambit of enjoyment of David\u2019s property, and thus, any damage caused to its paintwork from chemical smuts emitted by Harrington cannot be reckoned to constitute nuisance as such.<\/p>\n
Also, considering that nuisance is essentially a wrong to property and rights thereof, Harrington can plead against the liability for any alleged personal injury, such as health of David\u2019s wife, as not falling within the scope of tort of \u201cnuisance\u201d. These defences may be pleaded in addition to others, discussed later.<\/p>\n
Where an alleged wrong, regardless of any inconvenience or discomfort, makes the plaintiff\u2019s property uninhabitable for the intended purpose or devalues it, a stronger case of nuisance is created. In other words, where the nuisance causes material damage to the property and reduces its value, the onus of proof on the plaintiff is lesser, and the defence of circumstances of place and locality, discussed above, become irrelevant and inapplicable.<\/p>\n
In the given facts, as is testified by the horticulture expert, the dust emissions from Harrington have, aside to causing discomfort and inconvenience, impacted the soil quality of David\u2019s property, resulting in loss of trees and plants. Further, as property entails right to consumable air, the worth of David\u2019s house is undoubtedly diminished by the dust emissions rendering the air impure and polluted. Moreover, the paintwork of the car owned by Wally, and parked adjacent to the house, has also been damaged from chemical smuts emitted by Harrington. Thus, owing to the house and property being impaired by the noise and emissions, David\u2019s family can, aside to pecuniary damages, seek injunction against Harrington to discontinue its operations.<\/p>\n
Harrington may assert \u201creasonable use\u201d of its own property, as a defence to the above charges. Although such defence requires balancing of interests inter se the plaintiff and the defendant, the plea can nevertheless be taken up, as was raised in the case of Russell Transport v Ontario Malleable Iron, involving the operations of a long-standing foundry turning into nuisance for a newly found business on a previously vacant neighbouring land. Such use may be justified through the industrial license or permit obtained by Harrington authorising the manufacturing of pre-cast concrete units at the stated industrial zone.<\/p>\n
This can be further substantiated by evidence of all possible care and skills in such use by Harrington so as to prevent its operations from causing nuisance to David\u2019s family- a plea commonly raised, for instance, in Adams v Ursell. The defence could further alleviate to the status of a prescriptive right, if the nuisance had continued for more than 20 years, which however, will not apply in the present facts. This is because, although Harrington may have been using its property for the factory purpose for years, the nuisance commenced only recently when David purchased the house. The defence of right by prescription is, thus, lost by Harrington in the present case.<\/p>\n
Apart from the specific defences linked to the tort of nuisance, Harrington may also resort to the defence of volenti non fit injuria, meaning no person can enforce a right which he has voluntarily waived or abandoned. For instance, one who owns property adjoining a highway consents to the dangers incident to the ordinary use of highway. Such consent or waiver need not be express, i.e., may be implied or deduced from any acts, as upheld in Wilson v Darling Island Co. and in Morrison v Union Steamship Co. Ltd.<\/p>\n
It is clear from the facts that Harrington had been operating in the Edward\u2019s industrial estate prior to David\u2019s purchasing the house. This implies that David\u2019s family had full knowledge of the potential nuisance at the time of purchase of the property, and by knowingly choosing to buy it regardless of Harrington\u2019s manufacturing unit located opposite to it , had consented to, and waived such right to claim, nuisance. Pre-existing knowledge of risks can be adduced as an evidence of such consent or waiver. Similar to Commonwealth v Van Sickle, Harrington can allege that gross injustice will be caused if the interests of David\u2019s family, who are newcomers to the locality, are given precedence over those of Harrington, which has been in business in that area since years before their arrival. This is more so, as the area of its operation had been for so long an industrial zone devoted to manufacturing and such similar purposes, \u201cas to give those who had recently moved in no just right of complaint,\u201d especially, as they moved in with all knowledge of the existing state of affairs. This defence can also be stretched to Wally\u2019s car being improperly parked outside on the road, leaving it vulnerable to damage. Having said that, Harrington must be cognizant of contrary rulings by the judiciary in Bliss v Hall, and the majority decision in Miller v Jackson, stating that \u201cplaintiff came to the nuisance\u201d is no defence in law.<\/p>\n
In terms of relief, Harrington can claim shelter under \u201cpublic interest\/benefits\u201d to avoid an injunction ordering cessation of its business operations, i.e., the manufacturing operation of Harrington yields benefits to public at large, which outweighs the alleged private loss caused to David\u2019s family. This plea was raised, although without success, in the much celebrated case of The Attorney General v The Borough of Birmingham. Thus, while this defence may not absolve Harrington of its liabilities in entirety, it nevertheless can help in convincing the court against an order of injunction. Needless to state, as much depends on the substantiality of the public interests involved, this defence is seldom upheld.<\/p>\n
In respect of Wally\u2019s uninvited entry into the factory premises and the manager\u2019s office, Harrington can institute a suit of trespass to land. This tort emanates from, inter alia, a person\u2019s entry into the land in possession of another without lawful justification, affirmed in Basely v Clarkson. Any invasion or intrusion of property, regardless of its form, enormity or recurrence, constitutes trespass. For instance, in the case of Ellis v Loftus Iron Co.,the court stated that \u201cif the defendant places a part of his foot on the claimant\u2019s land unlawfully, it is in law as much a trespass as if he had walked half a mile on it\u201d. Thus, any form of physical contact with the property, including throwing of stones or mere crossing of boundary, suffices. Notably, the tort of trespass to land is actionable per se, i.e., can be sued against without any proof of damage.<\/p>\n
In the given facts, as Wally\u2019s access to Harrington\u2019s premise and his forceful entry into the manager\u2019s office was without any permission or authority, it is a clear case of trespass. This is further substantiated by his refusal to leave the premises despite the secretary\u2019s insistence requiring him to depart immediately. Such act of refusal or omission to leave tantamounts to continued trespass, which in itself constitutes a tort, independent of the original trespass by entry into the premise. This position is firmly established by Cottreau v Rodgerson, Cullen v Rice, and CPR v Gaud. Finally, although not essential to prove trespass, the fact that a window broke due to the scuffle reveals damage being caused by Wally to Harrington\u2019s premise. Hence, Harrington can very well sue Wally to claim damages against the tort of trespass to its land.<\/p>\n
C.S. Kerse, Law Relating to Noise (Oyez Publishing 1975).<\/p>\n
Christine Meisner Rosen, \u2018Knowing Industrial Pollution: Nuisance Law and the Power of Tradition in a Time of Rapid Economic Change, 1840-1864\u2019 (2003) 8(4) Environmental History 565.<\/p>\n
Heuston & Buckley, Salmond and Heuston on the Law of Torts (Sweet & Maxwell 1987).<\/p>\n
Jeremiah Smith, \u2018Reasonable Use of One\u2019s Own Property as a Justification for Damage to a Neighbour\u2019 (1917) 17(5) Columbia Law Review 383.<\/p>\n
McLaren, \u2018Nuisance Actions and the Environmental Battle\u2019 (1972) 10 Osgoode Hall Law Journal 505.<\/p>\n
R.A. Buckley, Law of Nuisance (2nd edn., Butterworths Law 1996).<\/p>\n
Adams v Ursell [1913] 1 Ch. 269.<\/p>\n
Ashby v White (1703) 2 Ld.Raym 938.<\/p>\n
Att-Gen v Cole [1901] 2 Ch. 205.<\/p>\n
Att-Gen v PYA Quarries Ltd. [1957] 2 QB 169.<\/p>\n
Bamford v Turnley (1860) 3 B. &. S. 62, 122 E.R. 25.<\/p>\n
Barger v Barringer (1909) 151 N. C. 433.<\/p>\n
Barker v The Queen (1983) 153 CLR 338.<\/p>\n
Basely v Clarkson (1681) 3 Lev 37.<\/p>\n
Beamish v Glenn (1916) 36 O.L.R. 10.<\/p>\n
Bliss v Hall (1838) 4 Bing NC 183.<\/p>\n
Bone v Seale [1975] 1 WLR 797.<\/p>\n
Buckpitt v Oates [1968] 1 All ER 1145.<\/p>\n
Chapman v Ellesmere [1932] 2 KB 431.<\/p>\n
Commonwealth v Van Sickle (1845) 4 Clark 104.<\/p>\n
Cottreau v Rodgerson (1966) 53 DLR (2d) 549.<\/p>\n
CPR v Gaud [1949] 2 KB 239.<\/p>\n
Cullen v Rice (1981) 120 DLR (3d) 641.<\/p>\n
Cunard v Antifyre [1933] 1 KB 551.<\/p>\n
Dent v Auction Mart (1866) LR 2 Eq 238.<\/p>\n
Desrosiers v Sullivan Farms (1987) 76 N.B.R. (2d) 271 (CA).<\/p>\n
Drysdale v Dugas (1896) 26 SCR 20.<\/p>\n
Dymond v Pearce [1972] 1 QB 496.<\/p>\n
Ellis v Loftus Iron Co. (1874) L.R. 10 C.&.P 10.<\/p>\n
Entick v Carrington (1765) 19 St. Tr. 1029.<\/p>\n
Esso Petroleum Co. Ltd. v Southport Corporation [1956] AC 218.<\/p>\n
Gaunt v Fynney (1872) LR 8 Ch. 8.<\/p>\n
Gertsen v Municipality of Toronto (1974) 41 DLR (3d) 646.<\/p>\n
Glasgow Corporation v Muir [1943] AC 448.<\/p>\n
Gregory v Piper (1829) 9 B & C 591.<\/p>\n
Holmes v Wilson (1839) 10 A&E 503.<\/p>\n
Hopkin v Hamilton Electric Light (1901) 2 O.L.R. 240.<\/p>\n
Imperial Gas Light and Coke v Broadbent (1859), 7 H.L.C. 600, 11 E.R. 239.<\/p>\n
Kennaway v Thompson [1981] QB 88.<\/p>\n
Konskier v Goodman Ltd [1928] 1 KB 421.<\/p>\n
Mann v Saulnier (1959) 19 DLR (2d) 130.<\/p>\n
Matheson v Northcote College Board of Governors [1975] 2 NZLR 106.<\/p>\n
McKinnon Industries v Walker [1951] 3 DLR 577 (PC).<\/p>\n
Miller v Jackson [1977] QB 966.<\/p>\n
Morrison v Union Steamship Co. Ltd. [1964] NZLR 468.<\/p>\n
Neilsen v Redel [1955] 1 DLR 125.<\/p>\n
Perera v Vandiyar [1953] 1 WLR 672.<\/p>\n
Polsue and Alfieri Ltd. v Rushmer [1907] AC 121.<\/p>\n
Russell Transport v Ontario Malleable Iron [1952] O.R. 621 (HC).<\/p>\n
Shelfer v City of London Electric Lighting Co. [1895] 1 Ch. 287.<\/p>\n
Smith v Charles Baker & Sons [1891] AC 325.<\/p>\n
Smith v Smith (1875) L.R. 20 Eq. 500.<\/p>\n
St. Helens Smelting Co. v Tipping (1865) 11 HLC 642.<\/p>\n
Sturges v Bridgman (1879) 11 Ch.D. 852.<\/p>\n
Tenant v Goldwin (1704) 2 Ld. Raym. 1089.<\/p>\n
The Attorney General v The Borough of Birmingham (1858) 4 K. &. J. 528, 70 E.R. 220.<\/p>\n
Walter v Selfe (1851), 29 L.J.R. (20 N.S.) 433 (Ch.).<\/p>\n
Westripp v Baldock [1939] 1 All ER 279.<\/p>\n
Wilson v Darling Island Co. (1955) 95 CLR 43.<\/p>\n
Woolerton and Wilson Ltd v Richard Costain Ltd. (1970) 1 W.L.R. 411.<\/p>\n
Cunard v Antifyre [1933] 1 KB 551, 556.<\/p>\n
Att-Gen v PYA Quarries Ltd. [1957] 2 QB 169.<\/p>\n
Gertsen v Municipality of Toronto (1974) 41 DLR (3d) 646.<\/p>\n
R.A. Buckley, Law of Nuisance (2nd edn., Butterworths Law 1996). See also, Tenant v Goldwin (1704) 2 Ld. Raym. 1089; and Barger v Barringer (1909) 151 N. C. 433.<\/p>\n
Gaunt v Fynney (1872) LR 8 Ch. 8. See also, McLaren, \u2018Nuisance Actions and the Environmental Battle\u2019 (1972) 10 Osgoode Hall Law Journal 505.<\/p>\n
(1865) 11 HLC 642.<\/p>\n
Desrosiers v Sullivan Farms(1987) 76 N.B.R. (2d) 271 (CA).<\/p>\n
Heuston & Buckley, Salmond and Heuston on the Law of Torts (Sweet & Maxwell 1987).<\/p>\n
[1943] AC 448.<\/p>\n
Heuston & Buckley (n 8), 65.<\/p>\n
Bone v Seale [1975] 1 WLR 797.<\/p>\n
Shelfer v City of London Electric Lighting Co. [1895] 1 Ch. 287.<\/p>\n
Tipping (n 6).<\/p>\n
Walter v Selfe (1851), 29 L.J.R. (20 N.S.) 433 (Ch.).<\/p>\n
Matheson v Northcote College Board of Governors [1975] 2 NZLR 106.<\/p>\n
Sturges v Bridgman (1879) 11 Ch.D. 852.<\/p>\n
Drysdale v Dugas(1896) 26 SCR 20.<\/p>\n
Heuston & Buckley (n 8), 65. See also, C.S. Kerse, Law Relating to Noise (Oyez Publishing 1975).<\/p>\n
Polsue and Alfieri Ltd. v Rushmer [1907] AC 121.<\/p>\n
See contrary opinion in Bamford v Turnley (1860) 3 B. &. S. 62, 122 E.R. 25.<\/p>\n
[1951] 3 DLR 577 (PC).<\/p>\n
Dymond v Pearce [1972] 1 QB 496.<\/p>\n
Tipping (n 6), 650 (Lord Westbury).<\/p>\n
Dent v Auction Mart (1866) LR 2 Eq 238.<\/p>\n
Imperial Gas Light and Coke v Broadbent (1859), 7 H.L.C. 600, 11 E.R. 239. See also, Smith v Smith (1875) L.R. 20 Eq. 500; and Beamish v Glenn (1916) 36 O.L.R. 10.<\/p>\n
Jeremiah Smith, \u2018Reasonable Use of One\u2019s Own Property as a Justification for Damage to a Neighbour\u2019 (1917) 17(5) Columbia Law Review 383.<\/p>\n
[1952] O.R. 621 (HC).<\/p>\n
See contrary view in Att-Gen v Cole [1901] 2 Ch. 205.<\/p>\n
Hopkin v Hamilton Electric Light(1901) 2 O.L.R. 240.<\/p>\n
[1913] 1 Ch. 269. See also, Drysdale (n 17).<\/p>\n
Sturges (n 16).<\/p>\n
Chapman v Ellesmere [1932] 2 KB 431. See also, Buckpitt v Oates [1968] 1 All ER 1145.<\/p>\n
Esso Petroleum Co. Ltd. v Southport Corporation [1956] AC 218.<\/p>\n
(1955) 95 CLR 43.<\/p>\n
[1964] NZLR 468.<\/p>\n
Miller v Jackson [1977] QB 966 (Lord Denning M.R.)<\/p>\n
Neilsen v Redel [1955] 1 DLR 125. See also, Smith v Charles Baker & Sons [1891] AC 325.<\/p>\n
(1845) 4 Clark 104.<\/p>\n
Commonwealth v Upton (1856) 72 Mass 473.<\/p>\n
Christine Meisner Rosen, \u2018Knowing Industrial Pollution: Nuisance Law and the Power of Tradition in a Time of Rapid Economic Change, 1840-1864\u2019 (2003) 8(4) Environmental History 565.<\/p>\n
(1838) 4 Bing NC 183.<\/p>\n
[1977] QB 966.<\/p>\n
(1858) 4 K. &. J. 528, 70 E.R. 220.<\/p>\n
Miller (n 36).<\/p>\n
Kennaway v Thompson [1981] QB 88.<\/p>\n
Barker v The Queen (1983) 153 CLR 338; and Perera v Vandiyar [1953] 1 WLR 672.<\/p>\n
(1681) 3 Lev 37.<\/p>\n
Entick v Carrington (1765) 19 St. Tr. 1029; and Woolerton and Wilson Ltd v Richard Costain Ltd. (1970) 1 W.L.R. 411.<\/p>\n
(1874) L.R. 10 C.&.P 10.<\/p>\n
Westripp v Baldock [1939] 1 All ER 279.<\/p>\n
Gregory v Piper (1829) 9 B & C 591.<\/p>\n
Ashby v White (1703) 2 Ld.Raym 938.<\/p>\n
Mann v Saulnier (1959) 19 DLR (2d) 130.<\/p>\n
Holmes v Wilson (1839) 10 A&E 503; and Konskier v Goodman Ltd [1928] 1 KB 421.<\/p>\n
(1966) 53 DLR (2d) 549.<\/p>\n
(1981) 120 DLR (3d) 641.<\/p>\n
[1949] 2 KB 239.<\/p>\n
<\/p>\n","protected":false},"excerpt":{"rendered":"
The foremost cause of action against Harrington arises in the tort of \u201cnuisance\u201d- commonly defined as \u201cinterference for a substantial length of time by owners or occupiers of property with the use or enjoyment of neighbouring property\u201d.<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[29],"tags":[85],"class_list":["post-2834","post","type-post","status-publish","format-standard","hentry","category-free-law-essaystort-law","tag-uk-law"],"yoast_head":"\n