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02231020/CAPE/SPEC 2017

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 The occupier may also be liable for the nuisance
created by his independent contractor where the
occupier could have reasonably foreseen, from the
instructions which he gave to the independent
contractor, that a nuisance was likely to occur –
Bower v. Peat (1876)
 The occupier may also be liable where the nuisance is
created by a trespasser on his land or where it was
created by an act of nature once he know or ought to
have known of the risk of the nuisance occurring and
did nothing to prevent it – Sedleigh-Denfield v.
O’Callaghan (1940).

(ii) The band may be sued as the creator of the nuisance.
 Any person who creates a nuisance can be sued
regardless of whether that person owns or occupies
the land from which the nuisance comes — Southport
Corporation.

Any two persons identified with clear reason 2 marks each
[4 marks]

Any two points partially explained 1 mark each [2 marks]

(b) Issue: Whether the interference was unreasonable
To determine liability of the defendant for unreasonable
interference the court will consider the following factors:

 Substantial interference
Not all interference gives rise to liability. In order to
strike a balance between the right of the defendant to use
his land as he wishes and the right of the plaintiff to be
protected from interference with his enjoyment of his land,
the plaintiff must prove substantial interference with the
enjoyment of land.

 Duration of the interference
The interference must be continuous over a period of time;
the shorter the duration of the interference the less
likely it is to be found unreasonable. A mere temporary
inconvenience, for example, noise or dust from a demolition
of building work on the defendant’s land may not be
unreasonable. A permanent inconvenience such as noise and
smoke from the defendant’s factory is more likely to be
held to be unreasonable and therefore actionable.

 Sensitivity of the plaintiff
If the plaintiff suffered damage only because he or his
property was abnormally delicate or sensitive, and he would
not otherwise have been harmed, the defendant would not be
liable in nuisance. The law expects a person to conform