Nuisance Halsey v Esso Petroleum - Ps action for damage to his property at his home caused by smut from Ds oil

depot was characterized as private nuisance - Distinction poses additional burden for P to show not only that the interference was unreasonable but that its effect was widespread and that Ps damage was particular - Damages in relation to chattels are also recoverable Leung Tsang Hung v Incorporated Owners of Kwok Wing House - Incorporated owners of a building may also be liable for injuries to passersby arising from defects in the common parts of the building but not where the defect causing injury arose from an illegal structure outside of the control of the incorporated owners Hunter v Canary Wharf (584) - P, occupants (owners, family members, tenants and others with whom the householders shared their homes) of residential dwellings, brought two actions - First, P complained of interference with television signal reception caused by the presence of a 250 meter high tower block recently erected by D - Second, P complained of deposits of dust left on their property as a result of the construction of a link road - First action case concerned not with interference caused by the presence of a building, but with electrical interference caused by the activities of Ds electricity board - Lower court held such interference did not constitute a legal nuisance, because it was interference with a purely recreational facility, as opposed to interference with the health or physical comfort or well being of Ps, he did not however rule out possibility that ability to receive TV signals free from interference might one day be recognized as so important a part of an ordinary householders enjoyment of his property that such interference should be regarded as a legal nuisance - That interference with such an amenity might in appropriate circumstances (e.g. many people TV transcends function of mere entertainment, particularly for the aged, lonely and bedridden it must provide great distraction and relief from circumscribed nature of their lives) be protected by the law of nuisance has been recognized in Canada Nor-Video Services v Ontario Hydro - A more formidable obstacle to claim complaint rests simply upon presence of Ds building on land in the neighbourhood as causing the relevant interference - As a general rule, a man is entitled to build on his own land though nowadays this right is inevitably subject to our system of planning controls - As a general rule, a mans right to build on his land is not restricted by the fact that the presence of the building may of itself interfere with his neighbors enjoyment of his land, the building may spoil his neighbors view and in absence of an easement, may take away light from neighbors windows nevertheless neighbor generally cannot complain the presence of the building, though this may seriously detract from the enjoyment of his land

Chastey v Ackland generally apart from long enjoyment or some grant or agreement, no one has a right to prevent his neighbor from building on his own land, although the consequence may be to diminish or alter the flow of air over it on to land adjoining so to diminish a flow of air is not actionable as nuisance Thus in absence of an easement , more is required than mere presence of a neighboring building to give rise to actionable private nuisance For an action in private nuisance to lie in respect of interference with Ps enjoyment of his land, it will generally arise from something emanating from Ds land such an emanation may take many forms noise, dirt, fumes, a noxious smell, vibrations, and such like Occasionally activities on Ds land are themselves so offence to neighbors as to constitute and actionable nuisance where sight of prostitutes and their clients entering and leaving neighboring premises fall into that category (but such cases relatively rare) New Zealand case Bank of New Zealand v Greenwood glass roof of verandah deflected suns rays so a dazzling glare thrown onto neighboring building was held prima facie to create a nuisance but seems effect not merely to reflect sunlight but to deflect it at such an angle and manner as to cause the dazzling glare, too bright for human eye to bear, shine straight into neighboring building Mere fact building on Ds land gets in the way or prevents something from reaching Ps land (interference) is generally not enough for this purpose Thus no action lay in private nuisance Case underlines limits nuisance action rights to a view, to light and to air are not protected by the tort of nuisance, based on historical precedent Also to note Lord Cookes reasoning: decision based on that D had not engaged in an unreasonable use of its land normally it is reasonable for a landowner to build on his or her land whatever he likes, subject to planning controls Thus door not closed to possibility that on appropriate facts, mere presence of a building could constitute an unreasonable interference with TV reception Issue of TV reception interference has never been litigated in HK but taking into account local preferences it is doubtful whether decision in Bridlington Relay would have been considered binding here consider importance of TV viewing as a household activity in HK on one hand, and the need for high rise residential and office buildings, coupled with high cost of techniques to avoid interference on the other perhaps the latter bears more significance for Hunter to be accepted

Thompson-Schwab v Costaki - Instance where activities on Ds land are in themselves so offensive to neighbors as to constitute an actionable nuisance, where the sight of prostitutes and their clients entering and leaving neighbouring premises were held to fall into that category - P owner of house on Chesterfield street, brought action in nuisance against D prostitutes who lived next door, complaining of existence of a brothel and fact that they solicited in the street - P claimed their activities depreciated the value of his house in respectable neighbourhood and interfered with his comfortable enjoyment of it

Activities of this kind does not in any material/physical way interfere with the land of P or their use of it Private nuisance may and usually is caused by a person doing on his own land something which he is lawfully entitled to do, his conduct becomes a nuisance when the consequences of his acts are not confined to his own land but extend to the land of his neighbor by unduly interfering with his neighbor in the comfortable and convenient enjoyment of his land Useful test perhaps what is reasonable according to the ordinary usages of mankind living in society, or more correctly in a particular society The activities being conducted in the case are not only open but notorious, such that they force themselves upon the sense of sight at the residents. The perambulations of prostitutes and their customers is obvious and blatant Note that the use of premises for purposes of prostitution cannot in every case constitute a private nuisance actionable at the instance of the occupiers of neighbouring houses it is a question of fact in each particular case Also consider that P had young sons and wife living there imagine the effect of activities next door on the minds of those young people

St Helens Smelting Co v Tipping - Action brought by P to recover from D damages for injuries done to his trees and crops, by their works - D are directors and shareholders of St. Helens Copper Smelting Company - P purchased an estate consisting of land within short distance of which stood Ds works - P alleged that D erected, used and continued to use certain smelting works upon land near to Ps dwelling house and land, causing large quantities of noxious gases, vapours and other noxious matter to issue and diffuse themselves over premises of P, whereby the plantation is greatly damaged, livestock rendered unhealthy, P prevented from having so beneficial a use of land and premises he would otherwise have enjoyed, also land depreciated in value - P admitted he had seen Ds chimney before purchase of estate but not aware whether the works were then in operation, D relied on fact that their works existed before P bought the property - Actionable injury is one producing sensible discomfort, that every man unless enjoying rights obtained by prescription or agreement was bound to use his own property in such a manner as not to injure the property of his neighbours everything must be looked at from a reasonable point of view - Therefore an action for nuisance to property, arising from noxious vapours, the injury to be actionable must be such as visibly to diminish the value of the property and the comfort and enjoyment of it - Distinction between action brought for a nuisance that the alleged nuisance produces material injury to the property, and an action for a nuisance on ground that the thing alleged to be nuisance is productive of sensible personal discomfort - The latter personal inconvenience and interference with ones enjoyment, ones quiet, ones personal freedom, anything that discomposes or injuriously affects the sense or the nerves whether constitutes nuisance depends greatly on circumstances of the place where it occurred

A man living in a town necessarily subjects himself to consequences of operations of trade that may be carried out in his immediate locality, necessary for trade and commerce and for benefit of the inhabitants of the town and public at large Whereas a person living in a society may be required to tolerate a certain amount of discomfort necessary for the legitimate and free exercise of the trade of their neighbours, the same does not apply to circumstances where the immediate result is sensible injury to the value of the property Suitable and convenient cannot carry with it the consequence that the trade may injury and destruct the neighbouring property

Capital Properties Ltd v Sheen Cho Kwong Overview - Ps abnormal sensitivity will be taken into account an may result in a finding of no liability. - Ps early sleeping hours did not qualify him for a remedy in nuisance - Exceptionally even where interference results in a physical damage, abnormal sensitivity will be taken into account (Robinson v Kilvert) heat sensitive paper stored on Ps premises was damaged by heat from Ds premises that would not have damaged ordinary paper - What is required is an interference that would affect an ordinary use of property Case Second P was tenant of 23rd floor flat owned by his employer First P D was owner and occupier of 24th floor flat immediately above Ps flat To ensure adequate pressure in shower, D installed a water pump Second P complained of excessive noise emanating from the water pump in particular late in the evening when Ds children were taking showers P brought action against D in nuisance, seeking injunction to stop use of shower after 11 pm Court have to strike balance between right of D to use his property for own lawful enjoyment and the right of P to the undisturbed enjoyment of his property No precise formula, useful test is what is reasonable according to ordinary usages of mankind living in a particular society (Sedleigh-Denfield v OCallaghan) Inconvenience must be an inconvenience materially interfering with the ordinary comfort physically of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions among the English people In HK the test is whether it is reasonable, according to the ordinary usages of HK people, for someone to run his pump assisted shower, at a floor level where pump assistance is needed, for two periods of a few minutes after 11 pm The fact that P himself likes to go to bed early will make no difference Have no anthropological or sociological evidence of HK persons bed time but it is common knowledge that many HK people stay up late at night

cannot see anything up to midnight can be regarded as out of the ordinary not unreasonable for the average HK person Artco Properties v Yau Chun Wing (592) - P a property development company hosted an exhibition of some of its properties in the main lobby of a Kowloon hotel - D were disgruntled buyers who attended exhibition and complained and protested vociferously about Ps failure to complete the project and deliver possession of the flats - P sued D in nuisance, claiming damages and injunction - First hurdle P has to overcome is the right of to sue (Malone v Laskey) in order to maintain an action in nuisance, P must have a right or interest in the land - P pleaded that between 28 and 30 Nov, it was the licensee to use and possess that part of the hotel lobby for holding the exhibition - But it is not good enough to be a mere license P to an action of nuisance if it is a licensee, has to have exclusive possession (Hunter v Canary Wharf Ltd) - Khorasandjian v Bush mere licensee or occupier can have right to sue expressly overruled by Hunter v Canary Wharf; substantial occupation not enough to find an action in private nuisance - Burden of proof is on P to prove that it has exclusive possession, hence the right to sue, it must follow that P has failed to discharge its burden, given the loose and vague evidence set out Sedleigh-Denfield v OCallaghan An occupier continues or adopts a nuisance where with knowledge of its existence, s/he fails to take reasonable steps to bring it to an end or if s/he makes use of it this suggests some element of negligence on part of D

Holbeck Hall Hotel v Scarborough Borough Council Cambridge Water Co v Eastern Counties Leather (The remoteness rule) (Rick p.599) P a water company statutorily authorized to supply water to the Cambridge area One of its boreholes produced water that came to fall below standards for PCE composition newly imposed by the European Economic Community Cause of PCE contamination eventually traced to Ds tannery, some 1.3 miles away some years ago system employed in storage was subject to occasional minor spillages the solvent in minor quantities unforeseeably seeped into the ground and eventually into the water making way to Ps borehole P brought actions in negligence, nuisance and Rylands v Fletcher HL dismissed the case in nuisance These cases no guidance on question whether foreseeability of harm of relevant type is a prerequisite of the recovery of damages for causing such harm to P (?)

In present case concerned with the liability of a person where a nuisance has been created by one for whose actions he is responsible 1. The fact D has taken all reasonable care will not of itself exonerate him from liability the relevant control mechanism being found within the principle of reasonable user o But it does not follow that D should be held liable for damage of a type which he could not reasonably foresee the law strongly points towards requirement that such foreseeability should be a prerequisite of liability in damages for nuisance as it is of liability in negligence 2. If P is in ordinary circumstances only able to claim damages in respect of personal injuries where he can prove such foreseeability on part of D, it is difficult to see why in common justice, he should be in a stronger position to claim damages for interference with the enjoyment of his land where D was unable to foresee such damage 3. Also conclusion of Wagon Mound 2- gave rise to a claim for damages arising from a public nuisance caused by a spillage of oil in Sydney Harbor court held in class of nuisance foreseeability is an essential element in determining liability (not right to distinguish on element of foreseeability between nuisance and tort of negligence) o It is not sufficient that the injury the injury suffered by Ps vessels was the direct result of the nuisance if that injury was in the relevant sense unforeseeable

Foreseeability of harm is a prerequisite of the recovery of damages in private nuisance, as in case of public nuisance Regan v Paul Properties Kennaway v Thompson