TORT 2.4D NUISANCE (FACTORS TO CONSIDER)
FACTORS THE COURTS CONSIDER IN A CLAIM FOR NUISANCE.
NB: You should discuss this sub heading in the exam especially where the question on nuisance is pointing both ways.
::: Substantiality of interference: Not every inconvenience is actionable. Knight-Bruce noted in Walter V Selfe, that the interference must be relatively substantial. See Luxmore J in Vanderpart V Mayfair Hotel. In essence, don’t overreact to little little disturbances. In Abiola V Ijioma, the defendant (neighbour) kept poultry located adjacent to the boundary wall of the plaintiff. The plaintiff complained that the noise and the smell from the chickens interfered with his comfort. Evidence was also adduced that chicken excreta and remains of dead hens were found in the pens. Held, (Per Dosumu J) the noise and smell is more than what a reasonable person in the area is expected to put up with. In Leeman V Montagu on similar facts as above, court granted damages. See also Moore V Nnado; Tebite V Nigeria Marine and Trading Co Ltd
::: Substantiality of Damage. Not merely trifling or minimal. Substantiality of damage can be seen in Ige V Taylor Woodrow Nig Ltd (where nuisance caused plaintiff’s house to be pulled do) In Karounwi V Okunaiye, (damaged plaintiff’s wall) ST. Helen’s Smelting Co V Tipping, (nuisance (i.e. fumes emitted from defendant’s workshop) damaged the plaintiff’s trees. Etc.
::: Reasonableness of the defendant’s conduct/activity: The court would apply the objective test in deciding.
::: The practice of humankind in relation to the community. Sedleigh-Denfield V. O’Calaghan
::: The malice/motive of the defendant. Malice in this context means spite, ill-will, evil motive. Malice can aggravate the damages (i.e. the defendant can be made to pay more) Hollywood Silver Fox Farms V Emmett, malice was construed where the defendant knowingly fired a gun on his property to make the sensitive silver foxes in the defendant’s land to miscarry. See also Christy V Davey.
::: The Utility of the defendant’s Act or operation. The court would look at the necessity and importance of the defendant’s operations/acts. This is not conclusive because in Bellew V Cement Co ltd, the court ordered the closedown of the defendant cement factory for it constituted a nuisance. It disregarded the fact that cement was vital for public interest and that they were the only producers of cement in the locality. In Hatton V UK residents of the area around Heathrow Airport sued to stop night flights for noise. The court held that since the flight contributed to the economic well-being of the country, the residents should (at worst) move somewhere else.
::: Extra-sensitivity of the plaintiff or his property. The question is; would a reasonable neighbour have endured the interference? Because no right is accorded to dainty modes as has been seen in the cases of AG V Vanderpart and Walter V Selfe. However, once it can be established that the plaintiff’s action was predicated on malice, the plaintiff can succeed as was seen in Hollywood Silverfox farm V Emmet. Where nuisance was found despite the fact that the plaintiff’s silverfoxes were over-sensitive.
::: Duration of the harm or inconvenience. The essence of nuisance is the continuing state of affairs-Page Motors V Epsol and Pewel Borough Council. The harm must be continuous. See my definition of nuisance earlier.
::: The Locality and whether the right to commit the nuisance existed from time immemorial: Nuisance differs from locality. The court noted in St. Helen’s Smelting Co V Tipping that a person who chooses to live in the heart of an industrial town should not expect a high degree of peace and quiet. Also in Tebite’s case the court held that what may be nuisance in Ikoyi may not be nuisance in Ebute meta.
::: Ability of the defendant to avoid the nuisance. May V Stoop.
::: Practicability of the relief sought for example the court cannot order an injunction where it would be made in vain. E.g. where it would require constant supervision of the court.
Note that only a person with interest in land can sue for private nuisance-Read V Lyons. Where a land has been let to a tenant, the landlord cannot sue except the nuisance caused a permanent damage to the property. A visitor cannot sue-Maloney V Laskey.
The person that created or authorised the nuisance or the occupier of the land where the nuisance emanates can be sued.