Nuisance Caused in UK Law

The onus of proving that the result is inevitable is on those who wish to escape liability for nuisance, but the criterion of inevitability is not what is theoretically possible but what is possible according to the state of scientific knowledge at the time, having also in view a certain commonsense appreciation, which cannot be rigidly defined, of practical feasibility in view of situation and of expense.

One of the principal differences between an action for a public nuisance and an aotion for negligence is the burden of proof. In an aotion for a public nuisance, once the nuisance is proved and the defendant is shown to have caused it, then the legal burden is shifted on to the defendant to justify or excuse himself. If ho fails to do so, he is held liable, whereas in an action for negligence the legal burden in most cases remains throughout on the plaintiff.

The nuisance consists in allowing the trees to encroach from the land of their owner into that of his neighbour. The owner most keep his trees in, just as he nay not allow filth to escape from his premises on to that of his neighbour - Humphries v. cousins 2 C.P.D. 239, though perhaps that case may be regarded as baaed on the doctrine of Rylands v. Fletcher.

To this there is made the qualification, or condition, that the statutory powers are exercised without "negligence"�that word here being used in a special sense so as to require the undertaker, as a condition of obtaining immunity from action, to carry out the work and conduct the operation with all reasonable regard and care for the interests of other persons.

If the occupier of land suffers personal injury as a result of inhaling the smoke, he may have a cause of action in negligence. But he does not have a cause of action in nuisance for his personal injury, nor for interference with his personal enjoyment. It follows that the quantum of damages in private nuisance does not depend on the number of those enjoying the land in question.

It seems to me that the value of the right to occupy a house which smells of pigs must be less than the value of the occupation of an equivalent house which does not. To some extent this involves placing a value upon intangibles. The law of damages is sufficiently flexible to be able to do justice in such a case: compare Ruxley Electronics and Construction Ltd. v. Forsyth [1996] A.C. 344.

A balance has to be maintained between the right of the occupier to do what he likes with his own, and the right of his neighbour not to be interfered with. It is impossible to give any precise or universal formula, but it may broadly be said that a useful test is perhaps what is reasonable according to the ordinary usages of mankind living in society, or more correctly in a particular society.