i) The law of private nuisance is designed to protect the individual owner or occupier of land from substantial

interference with his enjoyment thereof.

The liability for private nuisance is the unreasonable interference of another’s enjoyment of land or use of land and
in assessing this, the court will try to balance each party’s right enjoyment of land.

It is different from trespass to land since trespass is direct interference whereby private nuisance is an indirect
interference.

ii) The two types of harm for which Chemico Industries Ltd may be liable are:

1. physical injury to the plaintiff’s property, for example, where the plaintiff’s crops are destroyed by fumes
from the defendant’s factory, or where vibrations from the defendant’s building operations cause structural
damage to the plaintiff’s house. This is also known as encroachment.

Encroachment can be explained in the case of Davey v Harrow Corp (1958). The Plaintiff’s house was damaged by
roots penetrating from trees on adjoining land. At first instance, Sellers J found that the damage was caused by the
trees, but they were not proven to be the property of the defendants. On appeal and after further
evidence it was found that the trees had been growing for some time on the defendants land. Held: The
defendants were liable in nuisance for damage caused by encroaching roots whether self sown or planted.

Also in the case of Sedleigh-Denfield v O’Callaghan [1940] - The council undertook some work on the
defendant’s land at the request of a neighbouring landowner. They had placed a culvert in a ditch to allow
the water to drain away, however, they had negligently placed a grate in the wrong place which rendered the grate
useless and the culvert became prone to blockages. The defendant’s workers had cleaned the culvert periodically
over a three year period to prevent blockages. However, a heavy rain storm caused a blockage and the ditch
became flooded. The flood spread to neighbouring property owned by the claimant and caused
substantial damage. The claimant brought an action in nuisance for the damage caused. The defendant argued
that he had neither consented to nor had knowledge of the existence of the culvert. Held: The defendant was liable.
An occupier may be liable for the acts of a trespasser if they adopt or continue the nuisance
As we can see in encroachment, that due to the factory producing toxins in the form of smoke and Zinga’s roses
becoming withered that they are liable under physical injury.

2. substantial interference with the plaintiff’s use and enjoyment of his land, for example, where the plaintiff is
subjected to unreasonable noise or smells emanating from the defendant’s neighbouring land.

In substantial interference, we can see that the fumes from the factory have affected the breathing of Zinga. This
causes her asthma to worsen and her sense of smell to lessen as well.

The cases of Wheeler v JJ Saunders [1995] - The claimant, Dr Wheeler, owned a farm which had a farmhouse and
some holiday cottages. He lived in the farmhouse and let out the holiday cottages. He leased the farm to the
defendant, JJ Saunders ltd. JJ Saunders obtained planning permission to build a Trowbridge house on the farm for
the purpose of keeping pigs for breeding. Two years later he obtained permission to build another Trowbridge
house. The second house was built just 11 meters from the farmhouse and holiday cottage. Dr Wheeler brought an
action in nuisance in relation to the noise and smells emanating from the pig houses. The trial judge found for the
claimant and ordered damages and an injunction. The defendant appealed contending that since they obtained
planning permission for the Trowbridge houses, any smells or noise in relation to the pigs cannot amount to a
nuisance. Held: The appeal was dismissed. The granting of planning permission differs from statutory authority and
confers no immunity from an action in nuisance. The decision in Gillingham Borough Council v Medway Dock
merely states that the granting of planning permission may change the neighbourhood which may make it more
difficult to establish a nuisance. It does not authorise a nuisance.

Also in the case of Bone v Searle [1975] - The plaintiffs were the owners and occupiers of two adjoining properties.
They claimed damages for nuisance by smell. The judge awarded over and pound; 6,000. to each of the plaintiffs.
The Court of Appeal reduced the sum to and pound ;1,000. Held: the right to sue in private nuisance is linked to the
correct measure of damages. Damages were awarded on a lump sum basis for loss of amenity over twelve years,
there being no evidence of any diminution in market value of either of the two adjoining properties. There might be
an analogy with loss of amenity in personal injuries cases. But this was only for the purpose of showing that the sum
awarded by the judge was much too high. The damages were assessed per stirpes and not per capita.

We can see in these cases, that the defendants sued on the basis of smell, but in Zinga’s case, her breathing was
affected. We can see that in each circumstance, that a sense of breathing would be affected such as if the smell is
over bearing, then a person cannot be able to respire properly.

iii) Two factors to be taken into account by the courts in determining liability would be:

1. Locality

Where the interference takes place will have an important bearing on whether its reasonable: a land owner in the
centre of London can not reasonable expect the same level pf peace and quiet as one in the depths of the country. -
This point was made in St Helens Smelting Co v Tipping Ltd (1865) – the claimant’s estate was situated in an
industrial area, and in deciding whether the fumes from the defendants copper works amounted to nuisance, the
House of Lords distinguished between nuisances causing actual injury to property, as in in the as in this case and
nuisance causing personal discomfort. In the latter case, claimants should be prepared to put up with the level of
discomfort common to the area in which they are situated. However the claimants were not expected to put up with
actual damage to their land resulting from the normal activities of the locality, and so an injunction was granted.

In Sturges v Bridgman (1879), the claimant was a doctor, who sued confectioner for the noise caused by is industrial
equipment. The court took into account the fact that the area in which they both worked consisted mainly of doctors’
consulting rooms in and concluded that there was a nuisance, explaining that what would be a nuisance in quiet
residential area would not necessary be so in busy industrial one. This was whereby one place is considered
unreasonable, another is not.

Adams v Ursell (1913) - A house owner

complained that his neighbur’s fish and chip shop was emitting odours
which impinged on the enjoyment of his house. Held: Such odours might
amount to a sufficient interference to constitute a nuisance.
Also in Adams v Ursell (1913) - A house owner complained that his neighbour’s fish and chip shop was emitting
odours which impinged on the enjoyment of his house. Held: Such odours might amount to a sufficient interference
to constitute a nuisance.

2. Sensitivity

Traditionally a defendant is not

responsible for damage which
occurs
solely because the claimant, or
the claimants situation is
abnormally
sensitive
Traditionally a defendant is not responsible for damage which occurs solely because the claimant, or
the claimants’ situation is abnormally sensitive. This means that for extremely sensitive plants, a factory would
not be held liable if they are to wither and die.

In Robinson v Kilvert (1889) the

claimant occupied the ground floor of
the
defendant’s premises using it to
store brown paper. The
defendant’s
business, carried on in the
basement of the same building,
involved
making paper boxes. This needed a
dry atmosphere the heating used by
the defendant In the cellar made the
claimants floor hot too, which had
dried out used by the defendant In the
cellar made the claimants floor hot
too, which had dried out the brown
paper, reducing its value. The claimant
In Robinson v Kilvert (1889) the claimant occupied the ground floor of the defendant’s premises using it to
store brown paper. The defendant’s business, carried on in the basement of the same building,
involved making paper boxes. This needed a dry atmosphere the heating used by the defendant In the cellar made
the claimants floor hot too, which had dried out used by the defendant In the cellar made the claimants floor hot too,
which had dried out the brown paper, reducing its value. The claimant sued in nuisance, but the court found that
brown paper was exceptionally delicate. As the heat was not sufficient to damage paper generally and It had not
inconvenienced the claimants workmen, the damage was due more to the sensitivity of the paper than to the
defendants activities, so there was no nuisance.

Also, as soon as the claimant established a general nuisance was there, they can also sue for any extra problems
induced by unusual sensitivity.
In McKinnon Industries v walker (1951), the claimants orchids were damaged and his enjoyment of his
land generally affected by fumes and Sulphur dioxide gas form the defendants factory. The defendant claimed that,
even if he were liable for the general interference, he should not incur responsibility for the orchids since growing
there was difficult and delicate operation, and the plants could therefore be considered abnormally
sensitive. The Privy Council rejected this argument, stating that as the right to ordinary enjoyment had been
infringed the claimant could also claim protection for his more unusual and sensitive activities.