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Tort Essay Nuisance - Grade: 68
Tort Law (University of Oxford)
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‘The tort of private nuisance should be absorbed into the tort of negligence.’
Discuss
A person commits a private nuisance if he unlawfully interferes with the use of land of
another person.
Broadly speaking private nuisance can be divided into two sub-categories. One is an act
or omission by the defendant that causes “material injury to the property” 1 the other is
where the he defendant’s conduct is “productive of sensible personal discomfort.” 2
This distinction is material. Depending on the category in which the alleged nuisance falls
more or less is expected on of the defendant. In the cases concerning damage to
property liability is merely limited in terms of foreseeability, i.e. it is required that the
damage in question was reasonably foreseeable. In cases concerning interference with
reasonable enjoyment of the land, a balancing exercise has to be undertaken by the
courts, weighing the right of one neighbour against the interest of the other.
It is suggested that there is a substantial overlap between the tort of nuisance and the
tort of negligence and as a result it is desirable to simplify the law and absorb the former
into an all-encompassing tort of negligence.
I will outline to what extent such an overlap exists and the problems it potentially causes.
I will then argue that nuisance should be absorbed into the tort of negligence only to that
extent that the overlap is substantial, i.e. where physical damage to property is
concerned.
Cases in which the reasonable enjoyment of the property, irrespective of physical injury
to the land, the tort of nuisance should stand separately as a tort against land with
limited scope and a small number of potential claimants.
In Hunter v Canary Wharf3 the House of Lords quite assertively re-stated that the tort of
nuisance was a tort against land and therefore only persons with a proprietary interest in
land were entitled to sue.
The tort, they opined, operated in a different domain from the tort of negligence that is
governed by the general duty of care, established by the landmark decision in Donoghue
v Stevenson.4
It is often asserted that negligence is not a necessary element for the tort of nuisance
even where physical damage to property is concerned.5
It is however doubtful how far removed the tort of nuisance really is from negligence. In
Miller v Jackson6 the majority held that the defendant’s could be liable both in negligence
and in nuisance where cricket balls repeatedly hit the claimant’s house and caused actual
1
St Helen Smelting Co v Tipping (1865) 11 HLC 642, 650
2
Ibid. p.650
3
[1997] AC 655
4
[1932] AC 562
5
See e.g. The Wagon Mound (No.2) [1967] 1 AC 617
6
[1977] Qb 966
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Tort Essay Nuisance - Grade: 68
Tort Law (University of Oxford)
Scan to open on Studocu
Studocu is not sponsored or endorsed by any college or university
Downloaded by olinder seth ()
, lOMoARcPSD|59658805
‘The tort of private nuisance should be absorbed into the tort of negligence.’
Discuss
A person commits a private nuisance if he unlawfully interferes with the use of land of
another person.
Broadly speaking private nuisance can be divided into two sub-categories. One is an act
or omission by the defendant that causes “material injury to the property” 1 the other is
where the he defendant’s conduct is “productive of sensible personal discomfort.” 2
This distinction is material. Depending on the category in which the alleged nuisance falls
more or less is expected on of the defendant. In the cases concerning damage to
property liability is merely limited in terms of foreseeability, i.e. it is required that the
damage in question was reasonably foreseeable. In cases concerning interference with
reasonable enjoyment of the land, a balancing exercise has to be undertaken by the
courts, weighing the right of one neighbour against the interest of the other.
It is suggested that there is a substantial overlap between the tort of nuisance and the
tort of negligence and as a result it is desirable to simplify the law and absorb the former
into an all-encompassing tort of negligence.
I will outline to what extent such an overlap exists and the problems it potentially causes.
I will then argue that nuisance should be absorbed into the tort of negligence only to that
extent that the overlap is substantial, i.e. where physical damage to property is
concerned.
Cases in which the reasonable enjoyment of the property, irrespective of physical injury
to the land, the tort of nuisance should stand separately as a tort against land with
limited scope and a small number of potential claimants.
In Hunter v Canary Wharf3 the House of Lords quite assertively re-stated that the tort of
nuisance was a tort against land and therefore only persons with a proprietary interest in
land were entitled to sue.
The tort, they opined, operated in a different domain from the tort of negligence that is
governed by the general duty of care, established by the landmark decision in Donoghue
v Stevenson.4
It is often asserted that negligence is not a necessary element for the tort of nuisance
even where physical damage to property is concerned.5
It is however doubtful how far removed the tort of nuisance really is from negligence. In
Miller v Jackson6 the majority held that the defendant’s could be liable both in negligence
and in nuisance where cricket balls repeatedly hit the claimant’s house and caused actual
1
St Helen Smelting Co v Tipping (1865) 11 HLC 642, 650
2
Ibid. p.650
3
[1997] AC 655
4
[1932] AC 562
5
See e.g. The Wagon Mound (No.2) [1967] 1 AC 617
6
[1977] Qb 966
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