Private Nuisance Term
Neighbouring factory's loss of turnover
In respect of the claim by the neighbouring factory for loss of turnover, DFK could find that they are legally liable in tort of Nuisance. Nuisance claims can take two forms:
• public nuisance; and
• private nuisance
Public nuisance claims are treated as a crime as it affects the public at large. Whereas Private Nuisance claims are dealt with as civil matters and this is the area in which DFK could find that they are legally liable. The main purpose of the tort of private nuisance is to protect a person’s interest in their land. A private nuisance is an unlawful interference with a person's use or enjoyment of their land (which includes houses and buildings attached to it).
Interference can take either one of two forms:
• wrongfully allowing noxious (harmful) things to escape …show more content…
from their own property so as to interfere with the claimant's land (such as noise, smoke, smells, vibration, damp or vermin); or
• wrongfully interference with servitudes, or rights attaching to the claimant's land (such as rights of way, rights to lights of support to land or buildings).
The first point above is relevant here as dust from the construction works has escaped from the site and has interfered with the neighbouring factory by causing damage to their air conditioning system. It is important to point out that the fact damage has occurred is key, because the interference needs to be accompanied by damage for liability to attach.
It would be argued by the claimant that in court that the dust caused damage to their asset (i.e. the air conditioning system that broke down) which has caused an interference with their enjoyment of their land because they don't have any air conditioning which was needed for them to carry on trading. As a result of this they've suffered and interruption to their business with a loss of turnover.
It may be that DFK are found strictly liable (i.e. no fault or negligence needed to be proven) under the 'rule in Rylands v. Fletcher'. Under this rule defendants can find themselves strictly liable in nuisance for a single 'escape' rather than the usual repeated escapes or ongoing state of affairs. Under the rule two things have to operate:
1) There must be an escape of the damage-causing 'thing' from the defendants land.
i.e. in this case the dust which escaped the site and ventured onto the neighbours land.
2) There must be a non-natural use of land. The neighbour is using their land as a site for their factory and this would be deemed a non-natural use of land, as natural use of land would be things like planting crops or trees, the working of mines and lighting an ordinary domestic fire.
Whilst liability is strict there are defences to the Rylands V. Fletcher rule which would include the following:
• consent of the claimant
• act of god
• unexpected act of a stranger
• statutory authority - a plea that the action which is alleged to be a tort is permitted by statute law.
However, it would appear that none of the above defences would be relevant in the case of DFK and therefore they would find themselves legally liable for the damage cause to the air conditioning system and the loss of turnover suffered by the claimant. It's is likely the court would state that DFK are to pay the claimant special damages for the damage to the air conditioning system and the loss of turnover.
b)
In respect of the claim by the neighbouring factory for loss of turnover, DFK could find that they are legally liable in tort of Nuisance. Nuisance claims can take two forms:
• public nuisance; and
• private nuisance
Public nuisance claims are treated as a crime as it affects the public at large. Whereas Private Nuisance claims are dealt with as civil matters and this is the area in which DFK could find that they are legally liable. The main purpose of the tort of private nuisance is to protect a person’s interest in their land. A private nuisance is an unlawful interference with a person's use or enjoyment of their land (which includes houses and buildings attached to it).
Interference can take either one of two forms:
• wrongfully allowing noxious (harmful) things to escape …show more content…
from their own property so as to interfere with the claimant's land (such as noise, smoke, smells, vibration, damp or vermin); or
• wrongfully interference with servitudes, or rights attaching to the claimant's land (such as rights of way, rights to lights of support to land or buildings).
The first point above is relevant here as dust from the construction works has escaped from the site and has interfered with the neighbouring factory by causing damage to their air conditioning system. It is important to point out that the fact damage has occurred is key, because the interference needs to be accompanied by damage for liability to attach.
It would be argued by the claimant that in court that the dust caused damage to their asset (i.e. the air conditioning system that broke down) which has caused an interference with their enjoyment of their land because they don't have any air conditioning which was needed for them to carry on trading. As a result of this they've suffered and interruption to their business with a loss of turnover.
It may be that DFK are found strictly liable (i.e. no fault or negligence needed to be proven) under the 'rule in Rylands v. Fletcher'. Under this rule defendants can find themselves strictly liable in nuisance for a single 'escape' rather than the usual repeated escapes or ongoing state of affairs. Under the rule two things have to operate:
1) There must be an escape of the damage-causing 'thing' from the defendants land.
i.e. in this case the dust which escaped the site and ventured onto the neighbours land.
2) There must be a non-natural use of land. The neighbour is using their land as a site for their factory and this would be deemed a non-natural use of land, as natural use of land would be things like planting crops or trees, the working of mines and lighting an ordinary domestic fire.
Whilst liability is strict there are defences to the Rylands V. Fletcher rule which would include the following:
• consent of the claimant
• act of god
• unexpected act of a stranger
• statutory authority - a plea that the action which is alleged to be a tort is permitted by statute law.
However, it would appear that none of the above defences would be relevant in the case of DFK and therefore they would find themselves legally liable for the damage cause to the air conditioning system and the loss of turnover suffered by the claimant. It's is likely the court would state that DFK are to pay the claimant special damages for the damage to the air conditioning system and the loss of turnover.
b)