Slide 3 of 39
Traditionally, nuisance was the most common cause of action asserted at common law. Nuisance is interference with the use and enjoyment of the land belonging to another. There must be interference with the land. The requirement that there be interference with the land is one of the limiting factors of a nuisance action as the action is only available to owners and occupiers of land.
There are two types of nuisance: Private Nuisance and Public Nuisance. Private nuisance is a nuisance that affects an individual citizen only. It is actionable by that individual. Spills, however, are rarely so focused that they affect only one individual. Most spills affect a large number of the population.
Public nuisance is an injury to the public at large (as is normally the case with water pollution). It is actionable only by the Attorney General. Individuals generally have no cause of action for a public nuisance. There is an exception, however. A private action for a public nuisance is available if the plaintiff can prove a substantial injury beyond that suffered by the general public. This test is difficult to meet.
Fault or negligence is an essential element of a claim in nuisance involving a navigable waterway. This is a special requirement as normally nuisance is actionable without proof of fault. However, the House of Lords long ago decided that fault was essential for a nuisance emanating from a public highway. This requirement has been carried over to public navigable waterways.
There is no limitation period for a claim in nuisance so long as the nuisance continues.