Public Nuisance: A nuisance which is so widespread in its range and effects it would not be reasonable to expect one person to take proceedings to stop it, so that an action on behalf of the general public may be brought. But where a person has suffered particular damage over and above the general inconvenience suffered by the public, she or he is able to bring a claim in tort. The tort covers such areas as use of public highways and waterways, public health and safety, public morality and general comfort and convenience of members of the public.

1) Criminal Liability

R v Johnson- Public nuisance is made up of obscene telephone calls on hundreds of occasions to at least 13 women.

Crimes Act 1961, s145. Criminal nuisance - (1) Every one commits criminal nuisance who does any unlawful act or omits to discharge any legal duty, such act or omission being one which he knew would endanger the lives, safety, or health of the public, or the life, safety, or health of any individual. (2) Every one who commits criminal nuisance is liable to imprisonment for a term not exceeding one year.

R v Mwai- Section drawn in wider terms than the common law offence of public/common nuisance which limit acts to the public. (Man sleeping with woman without telling her he has aids.) R v Anderson- Creates an offence of recklessness. Negligence would be inconsistent with a criminal statute.(Man killed in cycling race. Prosecution for criminal nuisance brought against organiser. Convicted but won appeal.)

Summary Offences Act 1981 ss32-38

2) Civil Proceedings

s9 Crimes Act 1961- abolishes any other common law crimes. Arguable that it abolishes nuisance as it arose as a common law crime in the UK. Not mentioned in civil law.

AG/local authorities/Private individuals may bring such an action- Same requirements as private claims: 1)Fault is necessary 2)Action must be unreasonable and forseeability of the kind of damage required. (Almost always covered by negligence)

1) Action by Attorney-General: The AG has the right in asserting public right. May act personally or by a relator action ( AG on the relation on individuals including companies and local authorites bring an action to assert public right. Acting on behalf

AG v Abraham & Williams (NZ)- Action against owners of land used as cattle and sheep yards for smell and danger to health as the yard was within the boundaries of the township. Tolerance was expected because of the long history of the yards. Standard of comfort might be different for different localities- Injunction eventually granted but suspended for 1 year to allow for clean up. AG v PYA Quarries (ER)- Public nuisance defined: Widespread in range or so indiscriminate in its effect that it would not be reasonable to expect 1 person to take proceedings on his own responsibility to put a stop to it, but that it should be taken on the responsibility of the community at large. Any nuisance deemed public which materially affects the reasonable comfort and convenience of life of a class of Her Majesty's subjects.Not necessary to prove that every member of that class has been injuriously affected-sufficient to show that a representative cross-section of the class has been affected.

Qualification as to the sufficient number of subjects to be classed as being affected by a public nuisance- This is unclear. A-G v Harney Speedways- Noise created by a speedway-Referred to quarry case. A relator brought action on behalf of 7 neighbours. Held to be sufficient. A-G v Orange Productions- Complain about an aticipated rock concert. Unclear if a large group of people had been affected.

There will be a public nuisance even if one or two people are affected if it is a substantial interference with a right enjoyed by the public. -Coldicutt v Ffowcs-Williams

2) Action by an affected individual: If the individual can show 'special damage' / 'particular damage' above and beyond suffered by the general public, a private action may be brought.

1) Creation of a continuing interference with public rights and liability is strict.

A) Widespread private nuisances AG v Abraham & Williams

B) Unreasonable obstruction of the highway. When public highways are concerned, it is accepted that some obstruction may be necessary. Cases which involves large queues of people thar obstruct entry into other adjoining businesses. An injunction may be granted for the obstruction of pathways:

Amalgamated Theatres v Charles S LuneyLyons v Gulliver

Large operations like a dock. Recognized that people have to put up with a certain amount of activity.

Tate & Lyle Industries (ER)- Involved a business along the river thames which were prevented from operating their businesses as the London council has failed to make sure that the river was drenched. Owners were unable to retrieve their products from across the river. River is regarded as a public highway-obstruction=Public nuisance.

2) Failing to abate a continuing offence with public rights created by third parties or arising from natural causes. -Creates a duty to take reasonable steps to abate a public nuisance which you have not created. Applies if you occupe the land/ adopt/ assume control of the source of public nuisance:

Wandsworth London Borough Council v Railtrack plc- Pigeons were roosting on D's railway bridge and fouling the pavement below to an extent that it was impassable by the public. Railway company did nothing about it- council brought action against the railway company.

3) Isolated accidental events on the highway/ navigable waters leading to physical injury to the P/ his/her property. Require proof of ordinary negligence.

3) Why retain public nuisance? 1) AG can sue has its advantages where individuals are unable to or do not want to do it2) Private citizen can obtain an injunction where they have suffered special damage;3) Can recover for pure economic loss for interference with public rights. you cannot do that for private nuisance.

Why bother with it especially since negligence covers the ground?

Rule in Rylands v Fletcher- Isolated flowing current of water case. Concerns as to whether this fits into NZ law.

1) The decision and its antecedents

2) The Relationship with nuisance and negligence

3) Summary on the nature of Rylands

4. Defences-All those that apply to nuisance. That are a couple of new defences that were developed for R v F.

5. Liability for the escape of fire.

Principle: Imposing liability to an owner or occupier of land for damage caused by the escape of a dangerous thing from the land, regardless of whether or not the owner or occupier was negligent. A form of strict liability for a risky or dangerous thing accumulated on the land.

Facts: The bursting reservoir case. D owned a mill and wanted a reservior to be built on the land. Independent contractors were called to do the work. During the work, the contractors found unused mindshafts on the land. There was a mine next door. When the reservoir was filled, it burst and filled the mine next door.

Decision:

1)Exchequer Decision: In the original hearing there was no liability except that Baron Bramwell disagreed and held the flood would lead to liability, a form of strict liability. The person who was responsible for collecting the water on the land would be responsible for all the natural consequences of the escape of it.

2)Exchequer Chamber: The person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape. (Blackburn J. p 279).that is the rule. It was upheld in the HOL.

3) HOL:

Basic requirement: 1) Occupier Liability 2) Strict Liability 3) Non-natural use of the land. 4) Isolated acts 5) The keeping of dangerous things Ultimate lady v The ship "Norhtern Challenger"

Nuisance: In order to succeed under R v F, there would also be an entitlement to succeed in nuisance

Benning v Wong -Distinctions between actionable nuisances of traditional kinds and Rylands v Fletcher actions are not fundamental.

Read v Lyons- Two branches of law, law of nuisance and the law of Rylands v Fletcher might in most cases be invoked indifferently. They are interchangeable. (Case that involved whether occupiers of a amunitions factory would be liable to an employee who was injured in an explosion that happened on the premises. Use of land held to be natural during wartime. Rylands v Fletcher did not apply to personal injury)

Cambridge Water Co. V Eastern Counties Leather Plc- More coherent if the rule in Rylands v Fletcher were to be regarded as an extension of the law of nuisance to apply to isolated escapes from land even though the rule as established is not limited to isolated escapes. (Water being contaminated case. Determined that isolated escapes could be an actionable nuisance. No new law created) UK- Rylands v Fletcher=special kind of nuisance.

Negligence: Whether or not the rule has been absorbed by the ordinary principles of negligence. The rule in R v F appears to have been qualified to reflect on aspects of ordinary law of negligence. Australia: R v F qualified (can argue that negligence could be the approach to Rylands v Fletcher in Aus)

Cambridge Water v Eastern Counties Leather plc- Foreseeability of damage of the relevant type should be regarded as a prerequisite of liability in damages under the rule in R v F

Burnie Port authority v General Jones- HCA said that the rule in R v F has become so qualified and the principles in the law of negligence have been developed to such an extent that negligence will now confer a remedy in practically all cases of liability under the rule in R v F. (R v F obsolete) (Involved a port company authority that owned cool rooms-independent contract was delegated work in which a fire broke out in the cool rooms and destroyed frozen vegetables that were stored.)

Transco plc v Stockport Metropolitan Borough Council- Issue raised-Where why do we need strict liability in relation for land when we do not have it for personal injury? Personal injury is more damaging than property. Ursular believes that this is not confronted. She argues that we do not need R v F- looks toward Burnie's approach. (Transco went through every aspect of R v F- Ursular thinks this decision is problematic)

New Zealand Approach

Minority judgement in Autex v Auckland CC-R v F part of law of nuisance. Minority discussion- Why R v F should be maintained as a special form of nuisance. We need strict liability for land (Increased complexity and technology in society. If merely relying on negligence=no remedy. Insurance usually covers this.

R v F overlaid with qualifications and alterations-introduced uncertainty content and application of the rule (Weakened and confined) Ordinary rules of negligences-assumed dominion-proximity was the underlying theme under the law of negligence (allows it to cover situations that were covered by RvF) Law of negligence covers 1) A non-delegable standard of care 2) A variable standard of care under which the magnitude of danger may heighten the degree of care. Both go to strict liability. The higher the danger, thehigher the degree of care necessary.

Hamilton & Anor v Papakura district Council & Anor- Rylands regarded as a form of nuisance. Foreseeability taken as an elemennt necessary to establish liability under Rylands. Once shown thtat damage was foreseeable, it is irrelevant that the actual act causing the damage was not the fault of the D/ the D acted with reasonable skill and care. Hamilton v Papakura DC and Watercare Services-Special form of nuisance that extend strict liability to situations where damage results from an isolated escape of something harmful to the D's land.

R v F shares much with nuisance-Only a person with a possessory or proprietary interest in land can sue. -The D must have elusive occupation of or control over land from which there is an escape. -Measure of damages is diminution (reduction)/loss of amenity value of the land. Physical injury to

chattels and economic loss is recoverable as consequential loss. -Foreseeability of harm is required as for nuisance. -Liability is strict as negligence need not be proven. -Non-natural use is a feature of Rylands.

This does not apply to the requirement for non-natural use of landHazelwood v Webber (1934) 52 CLR 268. Read v Lyons [1947] AC 156. Tock v St Johns Metropolitan Area Board (1989 Cambridge Water [1994].

1) Complete default of the P- If the escape is solely due to the P, the D is not liable. Not the same as contributory negligence as the P here has to be solely liable. -Dunn v Birmingham Canal.

2) Act of God (Natural causes)- Where escape occurs naturally, without human intervention and could not have been foreseen or guarded against, this defence could arise.Given the encroachment of negligence principles, it has probably been replaced by foreseeability of harm principle

3) Act of a Stranger- If escape of the thing is due to an act of a third party, there may be a defence where the third party is not an independent contractor/employee/agent for whom one is vicariously liable. 2 Tests: 1) Where the third party is on a frolic of his own where foreseeability is relevant 2) Stricter test of potential control. Third parties act must be conscious and deliberate.

Greenock Corp v Caledonian Ry-But for the act of man there would have been no damage from the act of God. Nichols v Marshland- Successful. Ursular this that the principle will not longer be easy to argue. Rare for damage of this kind to arise without human intervention.

Simpson v AG- Flood damage. Ministry of works constructed drainage system but the drain overflowed in heavy rainstorms. The drain was an intervention of human. Defence argument that it was an act of God-rejected because the C said that the flooding was caused by D's changing the path allowing the water flow to travel.

Eriksen v Clifton- Liability of occupier is founded on the use to which he puts his property. Occupier must have some measure of control. (P got another party to come onto her land to which they were going to light a fire to burn off gas. She informed neighbours and arranged for a permit and safety precautions and authorised the 3rd party to come into the property to inspect the property and work out whats the best way of carrying out work. 3rd party lit practice fire (frolic of his own). The fire was not of the occupier-she did not have a duty to control. Third person seen as a stranger as they had been on a frolic of their own) Emmanuel v GLC (ER)- Imposed a tougher approach. GLC was liable for a fire that had escaped. Independent contractor was demolishing some buildings for D and the contractors had burnt some rubbish as part of how they carried out their work. The D council knew of this- had an agreement that they were forbidden to burn of rubbish. They did so anyway. Held by Denning that the occupier was liable for the escape of the fire which is due to the negligence of anyone other than a stranger. A stranger would be any person who in lighting a fire/ allowing it to escape acts contrary to anything which the occupier could anticipate that he would do. Benning v Wong- Onus on D to show that the proximate cause of damage is the malicious act of the third party against which no precautions which could reasonably have been taken would have been of use.Perry v Kendricks-Relevance of the exception is that the stranger is regarded as a person over whose acts the occupier of the land has no control. The real cause of the escape is not the occupier's action /failure of his part/ agents on keeping the dangerous thing on the land/ nor is it due to any latent/ patent defect in his protective measures. The real cause is the act of the stranger for whose acts the occupier of the land is not responsible for because he cannot control them.

Holderness v Goslin-Issue around fires that got out of control due to gass burn off. The test : The power of control which the occupier has over the person who came onto the property and committed the tortious act. Once the power exists to control activities of the visitor or licensee, even if the power is not exercised, the licensee or visitor ceases to be a visitorCatergory of visitors is small-have ability to control. Only trespasses that you have no idea are on the land,

Less strict approach: Purakanui v Kent & Patrick- Mr Reid living on D's land in a caravan. He was not employed by them but he lit some cut grass. Fire spread and caused damage to the neighbouring land. Arguable that D was a stranger (he was living there with consent) They considered him as a stranger here. Ursular thinks this is a more modern approach.

Fire also suited for R v F. Approach to fire is modified.

There was no liability for fires which accidentally began because it was seen as too harsh to apply a strict liability to that circumstance. Now, an occupier will be liable for an escape of a deliberately lit fire ONLY if the P can prove that the occupier/someone for whom the occupier is responsible was negligent in lighting the fire or allowing it to spread, or that the lighting of the fire amounts to a non-natural use of the land so as to attract strict liability under R v F.

Where a fire that ignites from unknown/natural causes ( no intention or negligence) from combustible material brought into D's land for a non-natural use and escapes without negligence, liability is based on a modified version of R v F which sets out 3 conditions. -Burnie Port Auhtority v General Jones

1) The D brought into his land things likely to catch fire, and kept them such that if they did ignite, the fire would be likely to spread to the P's land. 2) This was done in the course of a non-natural use of the land.3) The thing ignited and the fire spread.