Nuisance and the Rule in Rylands v Fletcher

Nuisance and Rylands v Fletcher are the land torts that sit alongside trespass to land. One fact pattern — something unpleasant coming from next door — often raises both, yet the two actions have different elements, plaintiffs and defences. Keep them separate and take each in turn.

The Irish test for private nuisance

The leading Irish statement is Hanrahan v Merck Sharp & Dohme (Ireland) [1988] ILRM 629 Binding (IE), where toxic factory fumes damaged a farming family, their animals and their crops. Henchy J framed the occupier’s entitlement as one to the comfortable and healthy enjoyment of the land to the degree expected by an ordinary person whose requirements are objectively reasonable in all the particular circumstances. As a working question: is the interference beyond what an objectively reasonable occupier should have to put up with?

Hanrahan settles two further points. Personal injury is not an essential ingredient — the tort is about land — but where it results from the nuisance it is compensable. And although the focus is on the unreasonableness of the interference rather than the defendant’s care, the kind of damage must still be foreseeable (Ambrose v Shevlin IE).

What counts as an unreasonable interference?

Nuisance takes many forms — noise, vibration, smell, smoke, dust, flooding and fire — affecting comfort and the senses, or causing physical damage to land, buildings, crops or livestock. In Halpin v Tara Mines Ltd [1976–77] ILRM 28 Binding (IE) vibration cracking a building, and interference with the nerves or senses materially diminishing the comfort of a reasonable person in that locality, were both capable of being a nuisance. The character of the damage changes how tolerant the court is: St Helen’s Smelting Co v Tipping (1865) 11 HL Cas 642 Persuasive (Eng) distinguishes injury to property, where little tolerance is required, from personal discomfort, where give and take is expected and locality matters. Not every annoyance qualifies: in Hunter v Canary Wharf Ltd [1997] AC 655 Persuasive (Eng) interference with television reception was not a sufficient interference.

Nuisance is usually a state of affairs rather than a one-off event, but that is a rule of thumb. Patterson v Murphy [1978] ILRM 85 Binding (IE) held that infrequent but intense blasting noise could be a nuisance despite being brief, and Colour Quest Ltd v Total Downstream UK plc Persuasive (Eng), from the Buncefield explosion, shows a single catastrophic event can amount to one.

Give and take, sensitivity and locality

Neighbourly life is, as Charleton J put it in Lanigan v Barry Binding (IE), a matter of give and take: a barking dog, a lawnmower or temporary building works must be tolerated, and there is no relief for complaints that are trivial, fanciful or exaggerated (Mullin v Hynes IE, Henchy J). Nor will an abnormally sensitive plaintiff or use found a claim: in Robinson v Kilvert Persuasive (Eng) heat damaging exceptionally delicate paper was no nuisance. The point cuts one way only — once a nuisance affecting reasonable requirements is established, the defendant answers for the full extent of the damage.

Locality shapes what amenity a plaintiff can expect. In Lanigan v Barry Charleton J held that a rural bloodstock-farming area set the standard, and that a locality’s character can change over time, including through the planning process — but planning permission does not authorise a nuisance. Locality is irrelevant where the nuisance causes physical damage to property (St Helen’s Smelting).

Who may sue, and who may be sued

The plaintiff is in principle the person with an interest in or possession of the land — the occupier or tenant. Ireland is more generous than England: given the constitutional status of the family, family members have been permitted to sue (in Hanrahan the son and his wife were plaintiffs; standing was also considered in Molumby v Kearns IE), whereas Hunter v Canary Wharf confined the English action to those with an interest in land.

Liability attaches to the creator of the nuisance and to an occupier who adopts or continues it. “Coming to the nuisance” is not a defence, and an occupier who inherits one must abate it (Miller v Jackson Persuasive (Eng)). Where two or more defendants each contribute, each is liable (Lambton v Mellish Persuasive (Eng); s 12(3), Civil Liability Act 1961).

Defences and remedies

Statutory authority is the principal defence, but it protects only the non-negligent exercise of a power (Geddis v Proprietors of Bann Reservoir (1878) 3 App Cas 430 Persuasive; applied in Superquinn Ltd v Bray UDC IE). Prescription is theoretically available — a right to commit a nuisance may be acquired by twenty years’ continuous use without objection — but is rarely made out for a variable nuisance such as noise (Lanigan v Barry [2008] IEHC 29). Consent is also a defence.

The remedies are damages (including for consequential personal injury), an injunction, the primary remedy where the nuisance continues, and abatement. Injunctions must be tailored: in Lanigan v Barry [2016] IESC 46 Binding (IE) the Supreme Court held the injunction granted below to be excessive and remitted the case for more precise relief.

The rule in Rylands v Fletcher

Rylands v Fletcher (1866) LR 1 Ex 265; (1868) LR 3 HL 330 Persuasive (Eng) established a distinct head of strict liability: a person who for their own purposes brings onto land and keeps there something likely to do mischief if it escapes keeps it at their peril and is liable for the natural consequences of its escape, provided the use of land was non-natural. The defendants’ reservoir flooded the plaintiff’s mine; they were not negligent, and liable anyway. Four elements must be established, plus foreseeability of the kind of damage:

• the defendant brought or accumulated the thing onto the land — something naturally present will not do (Healy v Bray UDC [1962–63] Ir Jur Rep 9 Binding (IE), a rock that came loose naturally);
• the thing was likely to do mischief if it escaped;
• there was an escape — from a place within the defendant’s occupation or control to a place outside it, which is why the munitions worker injured inside the factory in Read v J Lyons & Co [1947] AC 156 Persuasive (Eng) could not rely on the rule; and
• the use of land was non-natural.

Non-natural use is the elusive element. In Transco plc v Stockport MBC [2004] 2 AC 1 Persuasive (Eng) Lord Bingham required an exceptionally high risk — an exceptionally dangerous or mischievous thing in extraordinary or unusual circumstances — and held piping a normal water supply to be ordinary use. Whether that strict definition applies in Ireland remains open. Fire cases are notoriously difficult, because it is the thing brought onto the land that must escape, not the fire (Stannard (t/a Wyvern Tyres) v Gore [2012] EWCA Civ 1248 Persuasive (Eng)).

The Irish entitlement to sue is thought not limited to adjoining occupiers, extending to any person suffering material or personal injury from the escape — broader than England, where non-occupier and personal-injury claims have been refused (Read v Lyons). The defendant is usually the occupier.

Defences, and the reform debate

Because liability is strict, the absence of negligence is not a defence. What is available is act of God — an escape caused by an extraordinary natural event beyond reasonable anticipation (Nichols v Marsland (1876) 2 Ex D 1 Persuasive; in Ireland Superquinn Ltd v Bray UDC, where Laffoy J treated Hurricane Charlie as excusing the defendant) — act of a stranger (Beutler v Beutler Persuasive), the plaintiff’s own default (Dunn v Birmingham Canal (1872) LR 7 QB 244 Persuasive), consent (Victor Weston (Éire) Ltd v Kenny [1954] IR 191 Binding (IE)) and statutory authority (Geddis).

Know the reform argument too, because it is a recurring essay. England has narrowed the rule almost to a sub-species of nuisance (Transco); Australia abolished it, absorbing it into negligence (Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 Persuasive (Aus)); Ireland has taken neither course and the traditional rule still applies. The criticisms are the incoherence of “non-natural use” and the harshness of the escape requirement in Read v Lyons; the case for retention is strict liability for those who create exceptional risks, and deterrence.

Related Tort Law notes: duty of care in negligence · occupiers’ liability · trespass to the person · all free Tort Law notes.