TORT 140 Nuisance and Negligence — Law of Torts Notes for Judiciary

Nuisance and Negligence: An Unreasonable State of Affairs and an Unreasonable Act

Negligence asks whether the defendant behaved unreasonably. Nuisance asks whether the result is an unreasonable interference with the plaintiff's land. That is the whole of the difference, and everything else follows from it: a defendant may take every possible precaution and still commit a nuisance, because the question is not about his conduct; and a plaintiff with no interest in land may sue in negligence and cannot sue in nuisance, because the question is about his land. The two overlap constantly and are pleaded together as a matter of routine, and the reason is that they fail for different reasons.

1. The Comparison

	Nuisance	Negligence
The question asked	Is the interference with the plaintiff's land unreasonable	Did the defendant fall below the standard of reasonable care
What is judged	The result, or the state of affairs	The defendant's conduct
What the plaintiff must have	An interest in the land affected	Nothing beyond the duty owed to him
Reasonable care by the defendant	Not a complete answer. He may be liable although he took every precaution	A complete answer
Fault	Not an ingredient, though foreseeability of the type of harm is required	The whole basis of the liability
Duration	Ordinarily a continuing or recurring state of affairs	A single act or omission suffices
Locality	Material, where the complaint is of personal discomfort	Irrelevant as such
The plaintiff's sensitivity	An abnormally sensitive use is not protected	The eggshell skull rule applies once harm of a foreseeable kind occurs
Remedy sought	Usually an injunction, with damages	Damages
Prescription	A right to continue may be acquired in twenty years	No prescriptive right to be careless

2. Why Nuisance Is Not a Fault Based Tort

The defendant's care is not the issue. A factory that emits fumes using the best available technology and the most rigorous supervision still commits a nuisance if the fumes unreasonably interfere with a neighbour's enjoyment of his land.
The reason is that nuisance is about the allocation of a conflict between two landowners, each entitled to use his own land, and the law resolves it by asking whose use should yield rather than who was careless.
Reasonableness in nuisance therefore means something different from reasonableness in negligence. It describes the interference, weighed against the locality, its duration and intensity, the utility of the defendant's conduct, the sensitivity of the plaintiff's use and the defendant's motive; it does not describe the precautions.
But foreseeability is required. Cambridge Water Co. v. Eastern Counties Leather plc, [1994] 2 AC 264, holds that foreseeability of damage of the relevant type is a prerequisite of liability in nuisance as it is in Rylands v. Fletcher. Nuisance is therefore not a tort of absolute liability either.
St. Helen's Smelting Co. v. Tipping, (1865) 11 HL Cas 642 supplies the rule that governs the argument in practice: where there is material injury to property, the character of the locality is no answer; where the complaint is of sensible personal discomfort, it is.

3. Where Negligence Enters Nuisance

Where the nuisance arises from an omission, the defendant's knowledge and the reasonableness of his response become material, and the enquiry looks very like negligence.
Sedleigh Denfield v. O'Callaghan, [1940] AC 880: an occupier who continues or adopts a nuisance created by a trespasser, a predecessor in title or an act of nature is liable, and he continues it where, with knowledge or means of knowledge, he fails to take reasonable steps to abate it.
Where the nuisance is isolated rather than continuing, courts frequently require proof of negligence, since a single escape without any continuing state of affairs looks like an accident rather than an unreasonable use of land.
Where the nuisance is on or near a highway, the authorities have long required negligence for a claim arising from a latent defect, while imposing something close to strict liability for an obvious danger.
And where the defendant relies on statutory authority, the plaintiff must ordinarily show that the nuisance could have been avoided by the exercise of reasonable care, which converts the enquiry into one about conduct: TORT 059.

4. Where They Diverge in Result

The facts	Nuisance	Negligence
A factory emits fumes using the best available technology	Liable, if the interference is unreasonable	Not liable. Reasonable care was taken
A single careless escape of water damages a neighbour once	Doubtful. There is no continuing state of affairs	Liable
A passer by with no interest in land is injured by a falling branch	No claim. He has no interest in the land affected	Liable, if the tree was not reasonably inspected
Noise from a lawful activity disturbs a recording studio alone	Not liable. An abnormally sensitive use is not protected	Not liable. No want of care
A tree falls in a storm on land never inspected	Liable, the occupier having continued a nuisance he had means of knowing about	Liable, the duty being to inspect at reasonable intervals
An interference has continued openly for twenty five years	Not liable. A prescriptive right has been acquired	The question does not arise in that form

5. Where They Overlap

Falling trees, collapsing walls, defective drains and unsafe structures are pleaded as both, and the claim succeeds on whichever the evidence supports.
Escapes of water, effluent, smoke and dust are pleaded as nuisance, negligence and, where the accumulation was a non natural use, Rylands v. Fletcher.
Obstructions and dangers on a highway are pleaded as public nuisance and negligence together: TORT 106 and TORT 138.
Environmental harm engages nuisance, negligence, Rylands, absolute liability and the statutory regimes at once: TORT 081 and TORT 082.
The claims are not inconsistent. The plaintiff says that the defendant's use of his land unreasonably interferes with the plaintiff's, and alternatively that the defendant was careless.

6. Why Both Are Pleaded

They fail for different reasons. Where the defendant proves he took every precaution, the negligence claim fails and the nuisance claim survives. Where the plaintiff has no interest in the land, the nuisance claim fails and the negligence claim survives.
The remedies differ in emphasis. Nuisance is the natural vehicle for an injunction, which is what a plaintiff enduring a continuing interference actually wants; negligence is the natural vehicle for damages for an injury already suffered.
The defences differ. Prescription and statutory authority answer a nuisance claim and not a negligence claim; contributory negligence reduces a negligence claim and sits awkwardly with nuisance.
Limitation may differ, since a continuing nuisance gives a fresh cause of action from day to day under section 22 of the Limitation Act, 1963, while a negligence claim accrues when the damage occurs: TORT 097.
And the evidence differs. The nuisance claim is proved by evidence of the interference, its duration and its effect on ordinary use; the negligence claim by evidence of what the defendant did, knew and should have done.

⚠ What reasonableness is doing in each tort, and why the word misleads

The same word appears in both torts and means two entirely different things, and a great deal of confusion follows from not noticing it. In negligence, reasonableness describes the defendant's conduct: the question is whether he took the precautions a reasonable person would have taken, and if he did, that is the end of the matter whatever harm resulted. In nuisance, reasonableness describes the interference: the question is whether a neighbour should be expected to put up with it, and that is answered by looking at the locality, how long it lasts, how often it happens, how useful the activity is and how ordinary the plaintiff's use of his own land is. The defendant's precautions come into it only indirectly, as evidence of whether the interference could have been avoided. The practical consequence is the one that catches defendants out: a factory owner who has installed every available control, complied with every condition of his consent and been commended by the regulator has a complete answer to a claim in negligence and no answer at all to a claim in nuisance, because none of that addresses the question the second tort actually asks, which is whether his neighbours should have to live with the result.

7. The Position Stated Shortly

1. Negligence asks whether the defendant behaved unreasonably; nuisance asks whether the interference with the plaintiff's land is unreasonable.

2. Reasonable care is a complete answer in negligence and no complete answer in nuisance.

3. A plaintiff must have an interest in the affected land to sue in nuisance, and need not to sue in negligence.

4. Nuisance is not a fault based tort, but foreseeability of damage of the relevant type is required: Cambridge Water v. Eastern Counties Leather.

5. St. Helen's Smelting v. Tipping: locality is no answer where there is material injury to property, and is material only for personal discomfort.

6. Negligence enters nuisance where the complaint is of an omission, where the escape is isolated, on the highway, and under a plea of statutory authority.

7. Sedleigh Denfield v. O'Callaghan holds an occupier liable for continuing or adopting a nuisance he did not create.

8. An abnormally sensitive use is not protected in nuisance, whereas in negligence the eggshell skull rule applies once harm of a foreseeable kind occurs.

9. A prescriptive right to continue a nuisance may be acquired in twenty years; there is no prescriptive right to be careless.

10. Both are pleaded together because they fail for different reasons, and because the defences, the remedies, the limitation and the evidence all differ.