Law of Torts
Unreasonable Interference in Nuisance: Physical Damage and Discomfort, Locality, Duration, Abnormal Sensitivity, and Malice
The whole of the law of nuisance turns on reasonableness, and not on the defendant's fault or on the plaintiff's inconvenience taken alone. A set of factors decides whether a particular interference is unreasonable, and the first of them determines how much the others matter: whether the nuisance has caused physical damage to property, in which case the character of the locality is irrelevant, or only personal discomfort, in which case it is decisive. That distinction is the contribution of St. Helen's Smelting Co. v. Tipping, and everything else in this note is built upon it.
The threshold distinction, locality, duration, sensitivity, and the two malice cases
1. The Threshold Distinction
📖 St. Helen's Smelting Co. v. Tipping (1865) 11 HL Cas 642 Facts The plaintiff purchased a landed estate of some thirteen hundred acres near St. Helens, an area already containing manufacturing works. Shortly afterwards the defendant company began operating a copper smelting works nearby. Noxious fumes from the works damaged the plaintiff's trees, hedges, shrubs, fruit and cattle, and diminished the value of the estate. Held The defendants were liable. Ratio A distinction must be drawn between a nuisance producing material injury to property and one producing only sensible personal discomfort. Where there is material injury to property, the character of the locality affords no answer: a man is entitled to have his property unharmed wherever it happens to stand, and it is no defence that the neighbourhood is a manufacturing one. Where there is only personal discomfort, the plaintiff must take the locality as he finds it, and a man who lives in a manufacturing town must submit to the consequences of the trades ordinarily carried on around him. |
Physical damage to property | Interference with comfort and convenience | |
What it covers | Damage to the land itself, to buildings, crops, trees, or cattle | Noise, smell, smoke, dust, vibration and fumes causing discomfort |
Is the locality relevant | No. It affords no answer at all | Yes. It is very often decisive |
What the plaintiff proves | The damage itself, which substantially establishes the nuisance | A material interference with the ordinary comfort of an ordinary person |
The standard applied | Objective and factual | The ordinary person with ordinary habits and sensibilities |
2. The Locality Principle
- The classic statement is from Sturges v. Bridgman: what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey.
- The character of the neighbourhood is judged as it actually is, and not as the plaintiff would wish it to be or as it once was.
- It may change over time, and a locality that has become industrial cannot be treated as residential merely because one occupier has remained.
- Planning permission does not authorise a nuisance. It is not a statutory authority and confers no immunity, though a grant of permission for a development may in some cases alter the character of the locality by which the question is judged.
- And the principle has no application at all to physical damage, which is the point of St. Helen's Smelting.
3. Duration and Frequency
- A nuisance is ordinarily a state of affairs, continuing or recurrent, rather than a single event.
- An isolated act is not usually a nuisance. A single escape may found an action under Rylands v. Fletcher or in negligence, but not ordinarily in nuisance.
- The exception is where the isolated escape results from a continuing dangerous state of affairs on the defendant's land, in which case the state of affairs is the nuisance and the escape is its consequence.
- The time of day is important. Noise at night weighs far more heavily than the same noise at midday, because the interference is with sleep and rest, and the Noise Pollution (Regulation and Control) Rules, 2000 recognise this by prescribing separate day and night standards.
- Frequency and intensity are questions of degree, and a short but violent interference may be a nuisance where a long but slight one is not.
4. Abnormal Sensitivity
- The standard is the ordinary person and the ordinary use of land. A plaintiff cannot complain merely because his own trade, his own property or his own constitution is unusually delicate.
- So a trade requiring exceptional conditions is not protected as such. A person who stores unusually heat sensitive goods cannot complain of a degree of warmth that would not trouble anybody else.
- But once a nuisance is established by ordinary standards, the defendant answers for the whole of the resulting damage, including damage that is greater because of the plaintiff's sensitivity. The principle is the same one that underlies the egg shell skull rule.
- And the rule cuts both ways. A defendant cannot claim indulgence because his own operation happens to require an unusual amount of noise or smoke.
5. Malice
📖 Christie v. Davey [1893] 1 Ch 316 Facts The plaintiff and the defendant occupied adjoining semi detached houses separated by a party wall. The plaintiff's family was musical: his wife taught music, his children practised, and music was performed in the house for several hours most days. The defendant objected, and when his complaints produced no result he retaliated by hammering on the party wall, beating trays, whistling, shrieking and imitating the sounds he heard, deliberately and for the purpose of annoying the plaintiff. Held An injunction was granted against the defendant. None was granted against the plaintiff. Ratio The plaintiff's music, though loud and frequent, was a legitimate use of a house. The defendant's noises were made deliberately and maliciously for the purpose of annoyance, and what is done with that object is not a legitimate use of a house at all. Malice may therefore make unreasonable an interference that would otherwise have been tolerable, because an act done to annoy a neighbour can never be a reasonable way of enjoying one's own land. |
📖 Bradford Corporation v. Pickles [1895] AC 587 Facts The defendant owned land above the level of the Corporation's waterworks. He sank a shaft on his own land which intercepted underground water percolating in no defined channel, and so reduced and discoloured the supply reaching the Corporation's springs. His admitted object was to compel the Corporation to buy his land, or the water rights, at his price. Held The defendant was not liable. Ratio A landowner has an absolute right to abstract underground water percolating in undefined channels beneath his own land. Where an act is lawful in itself, an evil or improper motive does not make it unlawful. The two malice cases are reconciled by asking whether the defendant had an absolute right to do the act or only a qualified one. Abstracting percolating water was absolute; making noise in one's own house is qualified by the neighbour's right of enjoyment, and malice determines whether the qualification has been exceeded. |
6. Other Matters That Are Weighed
The factor | How it operates |
The social utility of the defendant's conduct | It is relevant to the remedy and not to liability. A useful and even an essential activity may still be a nuisance, though a court may award damages instead of closing it down |
The practicability of avoiding the interference | Where the defendant could have achieved the same result with far less disturbance at modest cost, his failure to do so weighs heavily against him |
The plaintiff's own conduct | Relevant where he has contributed to the interference or aggravated it, though coming to the nuisance is no defence |
The extent and intensity of the interference | Always a question of degree, measured against what an ordinary occupier in that locality should be expected to put up with |
⚠ How malice fits the scheme of the tort Malice is often presented as an oddity in the law of nuisance, on the footing that motive is generally irrelevant in tort. It is better understood as a natural consequence of the standard the tort applies. If the question were whether the defendant had been careless, his motive would indeed be beside the point, because a man who acts carefully is not negligent whatever he was thinking. But the question in nuisance is whether his use of his own land was reasonable as between neighbours, and that is a question to which purpose is plainly relevant. Banging on a party wall in order to annoy the family next door is not a way of using a house at all; it is a way of attacking a neighbour, and calling it a use of land does not make it one. Bradford Corporation v. Pickles is consistent with this, because there the defendant was exercising a right the law gave him absolutely, and an absolute right by definition is not qualified by the purpose for which it is exercised. |
7. The Position Stated Shortly
1. St. Helen's Smelting Co. v. Tipping distinguishes a nuisance causing material injury to property from one causing only personal discomfort.
2. Where there is material injury to property the character of the locality affords no answer at all.
3. Where there is only personal discomfort the plaintiff must take the locality as he finds it.
4. What would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey: Sturges v. Bridgman.
5. Planning permission does not authorise a nuisance, though a development may alter the character of the locality.
6. A nuisance is ordinarily a continuing or recurrent state of affairs, and an isolated act is not usually a nuisance.
7. The time of day is material, and noise at night weighs far more heavily than the same noise by day.
8. The standard is the ordinary person, so an abnormally sensitive plaintiff cannot complain; but once a nuisance is established the defendant answers for the whole of the damage.
9. Christie v. Davey holds that malice may make unreasonable an interference that would otherwise have been tolerable.
10. Bradford Corporation v. Pickles holds that where an act is lawful in itself a bad motive does not make it unlawful, and the two are reconciled by asking whether the right was absolute or qualified.