We are simply told that Doris lives with Amy and Bob. It should be remembered that private nuisance is unlawful interference with a person’s use or enjoyment of their land and a proprietary interest is a very important requirement . Any claim in nuisance made by Doris against Loam Limited (LL) would be dependant on confirmation of her interest in the land, which may be revealed as nothing more than a contractual licence. Furthermore, recent case law suggests that private nuisance is concerned only with land interests , not personal injuries, such as heart attacks. Although the courts have permitted claims for personal injury where there is no interest in land , Hunter v Canary Wharf should probably be regarded as good law. Doris might have a claim in public nuisance against LL since personal injury is covered , so long as she is part of a group that is sufficiently affected. The evidence of other residents would be crucial, and the fact that some residents are now used to the smell would not assist her claim.
A more successful cause of action for Doris would be a claim in negligence against LL. Naturally such a claim would hinge on proving that LL was at fault. Further, the claim would depend on the issue of remoteness, i.e. whether it was foreseeable to LL that Doris might suffer sickness and/or a heart attack through the emission of fumes which they negligently produced. It would be important to determine what safeguards, if any, were put in place by LL and whether these could be seen as sufficient to discharge their duty of care. Also important would be the question of causation, since the doctor’s statement leaves open the possibility that Doris’s heart attack had other causes. According to the “egg-shell skull” rule LL must take Doris as they find her, even if she is more susceptible to heart trouble than the other residents of Oldford. This analysis is likely to succeed providing that damage can be foreseen, even if not to the extent that actually occurred. Should the evidential burden be resolved in Doris’s favour a court might order damages to cover her pain, suffering and loss of amenity.
As home-owners Amy and Bob have a proprietary interest and therefore standing to bring an action in nuisance against LL for the disturbance caused by the factory vibrations. Doris possibly has standing depending on her status, as discussed above. It is important to determine the extent of the vibrations, which must be substantial and unreasonable . The fact that they continue from Monday to Friday is likely to fulfil these criteria. Case law suggests that a nuisance action with vibrations at its root will succeed and, indeed, causing sleep loss is viewed as unreasonable by the courts . It is, however, possible that LL could argue that Bob is hypersensitive and that the state of affairs they have created would not be a problem for somebody with ordinary sensitivities. That said, it is unlikely that Bob’s need for sleep could be seen as extraordinary, particularly following recent cases on the reasonableness of nuisance, such as Morris (Soundstar Radio) v Network Rail Infrastructure Ltd. , which concerned electromagnetic interference. If Bob can prove that LL have been negligent and that their behaviour has been unreasonable, he might have a claim in negligence for personal injury to his health. Amy and Bob might be advised to pursue a claim in nuisance for property damage if the vibrations, or indeed the dust particles, have caused any direct damage to their property, although the nature of any damage is unclear from the facts as given.
The courts must consider the locality of Oldford since, indeed, as stated in Sturges v Bridgman “what is a nuisance in Belgrave Square would not necessarily be so in Bermondsey”. Given that Oldford is a country town it is plausible that LL has changed the nature of the local area, which might make it more likely that an action for nuisance would succeed.
When considering a nuisance action for the damage caused by the vibrations the court ought to give attention to the continuing nature of the nuisance, i.e. the fact that Amy, Bob and Doris are affected day and night from Monday to Friday. The court would balance the competing issues of all the parties in Oldford when choosing to grant an injunction against LL, since this is a discretionary remedy. In choosing whether to grant an injunction, the court could consider the four guiding principles as outlined in Shelfer v City of London Lighting Co. which suggest that damages could be awarded instead of an injunction where the injury is small; where the quantum can be estimated in money terms; where adequate compensation can be made by small money payments; and where it would be oppressive to grant an injunction.
It might be difficult to quantify the damages in the instant case and, although the court would evaluate the social implications of awarding an injunction against an important local employer, temporary injunctions have been awarded even where job losses might result, where no other outcome would suffice . However, it would be crucial to consider that Amy and Bob knew about LL when they moved in to Oldford and, therefore, might be taken to have adopted the nuisance. This was the reasoning used in Miller v Jackson , for instance, and the court would need to find an acceptable balance.
Trespass is actionable per se, since it is a direct and intentional invasion of land in the possession of another. LL would have little difficulty in demonstrating that Bob had trespassed on their property or of proving the causal link between his presence and the damage to their factory. Accordingly, it is probable that a court would award special damages to LL to enable them to repair the damage directly caused by the fire.
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