Tort: Exam Notes

Overview of Tort Law – The Introductory Concepts

Key Issues
- Tort law
o Branch of the law of obligations
- Definition of Tort
o Obligations owed by one person to another
o Norms of conduct
o Tort offers a remedy for infringement of rights
- Bases of Liability
o Tort imposes liability for breach of norms where there was
1. Interest
2. Breach of duty in relation to that interest
3. That resulted in harm/infringement of a right
- Tort protects fundamental interests

Brief History of Tort

- Stems from the English Writ system of the 13th Century
o Courts would hear disputes
o Used to be called ‘breach of the Kings peace’
- Allowed personal action with respect to wrongs
o Of the person, goods, and land, and legal actions

Protected Interests
- Human Rights
- Convention Rights
- Intentional invasion of personal and proprietary interests
- Interests in economic relations, business and trade
- Interests in intellectual property
- Negligent interference with personal, proprietary and financial interests

Causation & Remoteness

- Primary question is always causation
o Can the D said to have been the factual cause of the loss or harm
- But for Test
o D can generally be said to be the factual cause
 If But For the conduct of X, Y would have never suffered harm
- Novus Actus Interveniens
o Breaks the chain of causation
- Remoteness of Damage
o The loss or harm must directly flow from the conduct of X
  Aka it cannot be too remote
o General test
 Is reasonable foreseeability
- In respect of damages keep in mind
o Wagon Mound No. 2
 Damages are available subject to the remoteness of damage principle

Occupiers Liability
Introduction
- Order of Occupier’s Liability Sources of Law
1. Common Law
2. Occupier’s Liability Act 1957
3. Occupier’s Liability Ac 1984
- Occupiers Liability & Statute
o Most of this area can be found in the statutes

Occupier’s Liability Act 1957

Pre – Occupier’s Liability Act
- The duty owed by an occupier
o Varied depending on the common law status of the entrant
- Highest standard
o Owed to hotel guests
- Lesser duty
o Invitees
The Scope of the Act
- Applies to visitors
o People coming on land with express or implied consent
- S. 1 (1) OLA 1957
o The duty of care the occupier owes to his visitors on his premises includes
things done on them & omissions
 Regulates the duty which an occupier of premises owes to his visitors
in respect of dangers due to the state of the premises or to thing does
or omitted to be done
- This creates an occupancy rather than active duty
- The danger/ damage must originate on the premises

Who Owes a Duty Under the Act?

- S. 1 (2) OLA 1957
o Duty imposed by law in consequence of a person’s occupation or control of
premises
o May be a lessee or licencee
 - KEY: occupier = control
- There is no statutory definition of occupier, thus must look to the common law
- Wheat v Lacon 1966
o Hotel guest died after falling downstairs
o There was no railing
o Court held that
 The manager and owner were both considered to occupiers
 AND a stranger had taken a light bulb
o Test
 Does the person have practical control over premises in a way that
allows him to ensure reasonable safety?
- AMF International Ltd v Magnet Bowling Ltd 1968
o During a construction project
o The owner and contractors were both considered to be occupiers
 Because they were both found to have sufficient control over the
premises
- Remember!
o That occupancy doesn’t require an interest in land
 It is the party with control of the premises that is deemed to be the
occupier
 They have control of the premises and thus have the ability to
regulate who enters the property
o Harris v Birkenhead Corp 1976
 Occupier = local authority
 Even though they had never taken possession or entered the
property
Parties That DO NOT Qualify as Occupiers?
- Landlord
o Who gives up complete control of the property to the tenant
o But if the landlord retains any control
 They will be liable as well
 As per Wheat v Lacon
- Vendors
o Vendor of a house may cease to be an occupier upon conveyance
- Owners of land crossed by rights of way
o AKA
 Someone crossing the land using a public/private right of way is not a
visitor

Dual Status
- In cases where there are 2 occupiers
o a person may be a visitor in relation to occupier A
o but a trespasser in relation to occupier B
- Ferguson v Welsh
o Lord Goff
 Depends on the question whether the occupier who authorised him to
enter had authority (implied or express)
Premises
- S. 1 (3) (a) OLA 1957
o Premises
 Any fixed or moveable structure
- Examples of Premises
o Ladders
 Maddocks v Clifton
o Electricity
o Grandstands
o Diving boards
o Lifts
o Airplanes
o Airport runways
- Fumedge v Chester – le Street DC 2011
o Inflatable structure = premises

To Whom is a Duty Owed Under the Act?

- S. 1 (2) OLA 1957
o Visitors
 Those who have express or implied permission to enter the premises,
and would have been licensees and invitees under the old common
law
- The following 2 cases demonstrate different duties
o Lowery v Walker 1911
 C regularly used a short cut across the land
 Thus held to be implied permission
o Edwards v Railway Executive 1952
 C tried to build a fence on a rail line to protect it from children
 Repeated Trespass
 Did not confer licence

Limitations
- The Calgarth 1927
o You do not need to protect against thing visitors do that may be
unforeseeable
 “When you invite a person into your house to use the stairs you do not
invite him to slide down the banisters”
- Ferguson v Welsh 1987
o 2 different types of visitors/ trespass on the same property
 Unauthorised sub-contractors
 To employers: they were visitors
 To owners of the property: they were trespassers

The Standard of Care

- S. 2 (2) OLA 1957
 o Visitors are owed
 A duty of care to use premises in a manner which is reasonable for
the purposes of being there
- The duty only applies to those who are allowed entry
- Common Duty of Care
o Covers negligent omissions & damage of property
- Pierce v West Sussex 2013
o The occupier isn’t under a duty to safeguard against harm in all circumstance

Who is a visitor?
- Visitor
o Anyone with express or implied consent
- A visitor can enter by right (licence)
o Example  police officer or medics
- Stone v Taffe
o Man hid in washroom waiting for pub to close
 Visitor = when the pub was open
 Trespasser = when the pub closed
 b/c he no longer had permission to be there

Specific Guidance – Set out in the OLA 1957 Act

- The 1957 act gives specific guidance on a number of subjects
1. Children
2. Skilled visitors
3. Warnings
4. Independent contractors

Children
- S. 2 (3) (a)
o Occupier must be prepared for children to be less careful then adults
- Why does the act make this specific guideline?
o B/c children are more vulnerable
- Glasgow Corporation v Taylor 1922
o A child at a park ate poisonous berries
o Court held that
 The child was not a trespasser he was treated by the court as a visitor
o Allurement
 This concept isn’t such a big deal any more especially with the
introduction of the OLA 1984
- Where a child is very young
o It is ok to assume that a parent/ guardian will be fully responsible for the
child
o Phipps v Rochester Corporation 1955
 5-year-old boy was watched by older sister
 Occupier was held not to be responsible
  He was entitled to expect that a child of tender years would be
in the care of a reasonable adult
- Bourne Leisure v Marsdon 2009
o Child drowned b/c fence was not high enough
o Court held that
 There was no breach b/c at 2 years old the occupier can reasonably
assume parental supervision
- Jolley v Sutton LBC 2000
o Abandoned boat
o Lord Hoffman
 Don’t underestimate a child’s ability to get into mischief
o Wagon Mound
 Test of reasonable foreseeability applied
 Accident was not too remote
o Local authority = liable

Skilled Visitors
- S. 2 (3) (b)
o A person who is exercising his calling, they will appreciate and guard against
special risks
o Example – a tradesmen
o A person exercising his calling will appreciate and guard against any special
risks
 The occupier is allow to assume that the visitor in this sense will
appreciate and guard against obvious risks
o Example  Plumber
- Roles v Nathan 1963
o Chimney sweeps were warned about the fumes
o Regardless they carried out their work and died
o The court held that
 The occupier wasn’t liable
 This was the sort of risk the C’s should have protected themselves
against
o Recognised dangers

Warnings
- Warnings
o Are a way to alleviate the duty of care
 Tell the visitor enough to enable him to be reasonably safe
- S. 2 (4) (a) OLA 1957
o “Danger of which he had been warned by the occupier, the warning is not to
be treated, without more, as absolving the occupier from liability, unless in all
the circumstances it was enough to enable the visitor to be reasonably safe”
 Warning does not absolve the occupier of all liability in the
circumstance
- Roles v Nathan 1963
o Bridge was dangerous sign = wasn’t adequate
  Warning was insufficient b/c he HAD to use the bridge as it was the
only one
- There is no general duty to warn about obvious risks
o Darby v National Trust 2001
 Man drowned swimming
 Occupier had put up a sign
 Held that the C should have noticed the obvious danger
 Risks were reasonably foreseeable
- Remember!
o It is important to distinguish between
1. Waring Sign – Danger Slippery Floor sign
2. Exemption of Liability
3. Limitation of entry
o Only the warning sign is an acceptable warning under OLA S. 2 (4) (a) 1957
- British Railway Board v Herrington
o Reasonable warnings include
 Erection and maintenance of notice boards/ fencing
 Oral warning
 Chasing away children


Independent Contractors
- S. 2 (4) (b)
o If the contractor themselves created the danger
o Where damage is caused to visitor by a danger due to the faulty execution of
any work of construction or repair
 he had acted reasonably in entrusting the work to an independent
contractor
- How to ensure the occupier is absolved of liability?
o Demonstrate that the occupier trusted the contractor for the job
o Or by express term in contract
 To exclude liability when carrying out work on the premises
o Ferguson v Welsh
 District council demolishing building
 Company carrying out the works contracted with a sub-company
 Serious injury – paralysed
 When you contract work to a competent expert
 Duty of care is discharged
- Haseldine v Daw 1941
o Visitor was killed in a lift
o Court held that
 The occupier was reasonable to assume a hired engineer to fix the lift
did a competent job
 Technical nature = no liability
- Woodward v Mayor of Hastings 1945
o Cleaner was asked to clean the steps of snow and ice
o Child slipped and fell
 o Court held that
 Occupier should have ensured that snow and ice were cleared off
 It wasn’t technical thus liability remains
- Does the occupier have to ensure that the competent?
o Gwilliam v West Herts NHS Trust 2002
 Expected that an occupier should ensure a contractor is reasonably
ensured
o Glaister v Appleby-in-Westmoreland Town Council 2009
 You can now reasonably assume a contractor has insurance

The Compensation Act 2006 & Occupier’s Liability

- S. 1 - The Compensation Act 2006
o When considering a negligence claim judges must consider the potential
impact on desirable activity
- The Scout Association v Barnes 2010
o Jackson LJ
 Stated that the balancing act in S.1 of the Compensation Act
 Put the balancing act test on statutory footing

Exclusion of Liability & Defences – OLA 1957

- Occupier owes a “common duty of care”
o To all visitors
- S. 2 (1) OLA 1957
o Allows the occupier to discharge liability
- Unfair Contract Terms Act 1977
o S. 2 (1)
 Invalidates any contract term/ notice
 Excluding liability for death or personal injury resulting from a breach
of duty under the OLA 1957
o S. 1 (1) (c)
 Provided that the premises are occupied for the purpose of business
- Consumer Rights Act 2015
o S. 65 (1) – CRA 2015
 States that a trader cannot by term of a contract or by a customer
notice exclude or restrict liability for death or personal injury
resulting from negligence
o S. 62 - CRA 2015
 Notice must be fair
 Any unfair consumer notice is not binding
- Willing Accepted Risks – Volenti
o S. 2 (5) OLA 1957
 Can use the defence of volenti non fit injuria
 Acceptance of the risk
o Poppleton v Trustees of Portsmouth Youth Activities Committee
 C fell climbing a wall, no instruction or supervision
  Held that
 May leisure activates were inherently risky
 Beyond the occupier’s duty to
o Train and supervise all adults engaging in them
 Held
 She had deliberately accepted the obvious risk of climbing the
wall
- S. 2 (3) OLA 1957
o V somehow contributed to his injury

Occupiers Liability Act 1984

- Applies to non-visitors
o Persons coming on to the land without occupiers express or implied consent
- Definitions of Occupier and Visitor
o Are the same as found in the 1957 Act
- Old Law
o Addie v Dumbreck 1929 (Scottish Case)
 Occupier could only be liable for deliberately or recklessly causing
harm to trespassers
- British Railways Board v Herrington 1972 – this case changed the Addie rule
o New duty established
 Duty of common humanity
- Law Commission  introduced the Occupiers Liability Act 1984
o Report initiated the new act coming into force
o Intent of the act
 Wide and general
 In order to give the court flexibility in applying the law

Scope of Occupiers Duty

- S. 1 (1) (a) OLA 1984
o Act applies to
 Trespassers + private rights of way
- The Countryside and Rights of Way act 2000
o Deals with Rights of way too
- Revill v Newberry 1996
o Occupier lay in wait for people who were trespassing
o He shot at them injuring a party
o The court held that
 Although they were trespassers the act didn’t apply
 But the V was 2/3 contributory negligent
o Even when case is beyond the scope of the statute you can still employ the
Common Law
- Keown v Coventry Healthcare NHS Trust 2006
o 11 year old climbed fire escape
o court held the occupier wasn’t liable
  Because it was the child’s fault not the actual property that caused
the injury
- Questions to ask when trying to determine LIABILITY
1. Is there a duty of care?
2. Consider if the standard has been achieved

1. When does a duty arise?

- S. 1 (3) OLA 1984 – All 3 must be satisfied!
o An occupier owes a duty to a non-visitor if
1. He is aware of the danger or has reasonable ground to believe it
exists
2. He knows or has reasonable ground to believe that a trespasser is
in the vicinity of danger
3. The risk is one against the occupier may reasonably be expected
to offer other protection
- Tomlinson v Congleton DC 2003 (Scottish Case)
o 18 years old, thus risk should have been clear
o There was a dangerous – no diving sign
o The court held that
 Only 1 of 3 of the above S. 1 (3) grounds were established
 Thus there was no liability on the occupier
o C’s Actions alleviated liability
o House of Lords
 Reaffirmed the idea that
 The occupier need not protect against obvious dangers ie
 Natural Features
- Donoghue v Folkstone Properties 2003
o Swimming hole
 In the summer vs winter
 The court held that
 There was a different duty / liability depending on the season
 Thus it was the winter = no liability

2. The Standard of Care

- S. 1 (4) OLA 1984
o The duty to take such care as is reasonable in all the circumstance of the case
to see that the entrant does not suffer injury on the premises by reason of the
danger concerned
- General Rule
o Persons will full capacity
 Are allowed to decide for themselves whether to take the risk
- In regards to Children
o There is no automatic duty to a child coming onto the land
 The child’s age must and will be taken into consideration
- Keown v Coventry
o “Premises which are not dangerous from the point of view of an adult can be
dangerous for a child but it must be a question of act and degree… But it
 would not be right to ignore the child’s choice to indulge in a dangerous
activity in every case merely because he was a child”
Warnings
- S. 1 (5) OLA 1984
o Warning alleviate almost all liability for adults
- Tomlinson v Congleton DC 2003
o Almost any notice will be adequate
Volenti
- S. 1 (6) OLA 1984
o Volenti = consent
o No duty is imposed on a person who willing accepted the risk
- BUT the question then becomes
o Is the risk was willingly accepted
- Congleton
o There was no liability in this case
o Why?
 b/c the risk was deemed by the court to be reasonably accepted by
the C
- Ratcliff v McConnell 1999
o Drunk, climbed over a high fence into a locked swimming pool after hours
o Warning sign
o Court held
 No liability b/c C overcame obstacles and signs
 He was an adult and drunk but still able to make decision and
understand dangers
o Volenti applied

Exclusion of Liability
- Sometimes non-visitors won’t be classed as trespassers
- Old Law
o No duty to people using rights of way
- New Law = Countryside and Rights of Way Act 2000
o Liable

Trespass in England and Wales

- Trespass
o Protects the occupiers land from intrusion from another
o Trespasser directly interferes with the C’s possession of the land
 Could be intentional or negligent
o No requirement for harm in England
o There must be phsycial intrusion
- Trespass could be as simple as
o Walking across someone’s land
- Main difference between Scotland and England in the law of trespass?
o Remedies regarding trespass law
- Trespass requires physical intrusion on another’s land
 o Ellis v Loftus Iron Co
 If the D places a part of his foot on the C’s Land unlawfully it is in law
as much trespass if he had walked a half a mile on it
o Southport v Esso Petroleum
 Where there is no act of direct intrusion on another’s property
 There is no liability in trespass although there may be in
nuisance
- What doesn’t count as trespass?
o Smells and notice?
- Accidental trespass?
o Conway v George Wimpey
 D was mistaken as to who is the owner of land
- Continuing trespass?
o Where the trespasser remains on the land as a trespasser

Some Cases
- Bocardo SA v Star Energy UK Onshore Ltd
o Oil and gas under land is owned by the crown
o Energy Star obtained a licence to extract oil from the crown
o Extracted 1M barrels of oil from Bocardo’s land
o Held
 This was a trespass of Bocardo’s land
 b/c he was the owner of that land from the centre of the earth up to
the heavens

Who can Bring a Claim in Trespass?

- The owners or person in possession of the land at the relevant time
o JA Pye (Oxford) Ltd v Graham
 Lord Browne – Wilkinson
 Possession requires two elements
1. Factual possession
2. Intention to possess

Defences to Trespass?
- Justification
o Legal justification for one’s presence on another’s land
o Countryside and Rights of Way Act 2000
 Confers a right on the general public access to the open countryside
o Police and Criminal Evidence Act 1984
 Police are permitted to enter land to make an arrest
- Acquiescence
o D may have been misled by the C
o Example
 Where the landlord says the tenants are allowed to stay in the
property
- Mistake?
 o Mistake is not a defence to trespass
o Basely v Clarkson
 C thought he was using his own land

Trespass in Scotland
- In England
o Loss or damage does not have to be demonstrated to raise an action
o Trespass is a Tort
- BUT in Scotland
o You do have to demonstrate loss or damage
o Trespass IS NOT a Delict
 But remember!
 That this doesn’t mean there is no law of trespass in Scotland

What system Addresses Trespass Better?

- In Scotland
o Damages are only payable if damages are suffered (seems fair)

OL(S)A 1960 – Background Information

- Occupiers liability exists in both
o The common law
o And the OL(S)A 1960
 Statue clarified the law
- Before the act
o Liability was based on the concept of culpa (fault)
o Distinction in Scotland between visitors and trespassers is irrelevant
 But this changed in the case of Dumbreck v Robert Addie & Sons 1929
- Bumbreck v Robert Addie & Sons (Colleries) Ltd 1929
o Child was crushed & died in a machine
o Did the occupiers owe a duty of care?
 HoL departed from the common law concept of Culpa
o The Law Reform Committee in Scotland
 Proposed the OL(S)A Legislation
 Restore the concept of culpa

Under the OL(S)A 1960

- Thus under the OL(S)A 1960
o Occupiers of property owe a duty to take care in respect of people entering
their land in as is reasonable
- S. 1 (1) OL(S)A 1960
o Duty is imposed on the occupier of a premises
- Occupier
o Persons in possession of property
 Example  Tenant
- Control
 o Entitled the occupier to keep property safe
- James Feely v Co-Operative Wholesale Soceity
o Control
 Person must be in a position to do or refrain from doing whatever is
statutorily required in relation to state of premises
- This act
o IS NOT restricted to heritable property
- S. 1 (3)
o Applicable to a person occupying or having control of
 Any fixed or moveable structure
 Including and vessel, vehicle, aircraft etc.

Duty
- Duty
o Imposed on a person occupying or controlling the land
- S. 2 (1) OL(S)A 1960
o A duty is owed to anyone entering the premises
- S. 2 (3) OL(S)A 1960
o If the person entering the property has willingly accepted the risks imposes a
duty on the occupier
o Duff v East Dunbartonshire Council
 Fell in parking lot
 Lord Marnoch
 Persons of ordinary intelligence should give a wide berth to
whatever danger is presented
 They must be taken to have accepted whatever risk was
involved
- Reasonableness
o The duty to exercise case is to the extent of what is reasonably foreseeable
- The Test of Reasonableness
o Taylor v Glasgow Corporation
 Child dies of eating poisonous berries
 Held that
 The duty of making public grounds reasonably safe didn’t
include an obligation of protection against obvious dangers
 When a danger is obvious
 Should be brought to the attention of visitors by warning or
prohibition
- Graham v East of Scotland Water Authority
o Man drowned in reservoir coming home from the pub
o Held that the
 Occupier was required to fence off dangers which were concealed or
are hazardous
 But the reservoir was a well-established and permeant feature of the
landscape
 Therefore, no liability
 - Dawson v Page
o An occupier is only under a duty to take reasonable care

Occupier’s Liability in Scotland

Introduction
- The main statutes here are / Sources of Law are
o Occupier’s Liability (S) Act 1960
o The duty imposed on Occupier’s in the 1960 Act
o The Concept of reasonableness in the 1960 Act
- Scots law was strongly influenced by English law
o Dumbreck v Robert Addie & Sons (Sottish Case)
 These classifications have now been swept away by the OL(S)A1960
 BUT – what came out of this case anyways….
 The duty of care towards a person entering onto property
depended on the status of the person who entered
o AKA licence, trespasser, guest

Burden of Proof – In Scotland

- The onus lies on the P to demonstrate that the occupier failed to take care required
- Mc Guffee v Forth Valley Health Board
o P slipped & fell on snow
o Problem
 Was the D couldn’t establish a period in which the snow should have
been removed by the employees

Quick Reference Chart – Difference between Scottish & English

Occupiers Liability
England Scotland
Who is an occupier? Who is an occupier?
- OLA 1957 - S. 1 (1) OL(S)A 1960
o Person who has control of - S. 1 (2) OL(S)A 1960
premises
- Wheat v Lacon
What are premises? What are premises?
- S. 1 (3) OLA 1957 - S. 1 (3) OL(S)A 1960
o Any fixed or moveable o Any fixed or moveable
structure structure
o Including a vessel, vehicle or o Including
aircraft  Vessel
- Wheeler v Copas  Vehicle
o Ladder = premises  Aircraft
Who are visitors? Who are visitors?
- S. 1 (2) – OLA 1957
 o The person who would be
treated as a licensee or
invitee
- S. 2 (1) OLA 1957
o Trespassers are not visitors
- OLA 1957
o Abolishes distinction
between invitees and
licensee
o Installs the common duty of
care
When Will a duty be owed? When Will a duty be owed?
- S. 1 (3) OLA 1984 - S. 1 (1) OL(S)A 1960
o When the occupier is aware o Duty to people entering the
of the danger property
o Or has reasonable grounds o Trespass is not in of itself
to offer protection from wrong, damage must be
danger shown
- S. 2 (1) OL(S)A 1960
o Care which an occupier of
premises is required,
towards a person entering
Treatment of Trespassers Treatment of Trespassers
- Lord Reid - McGlone v British Railways Board
o An occupiers duty to o Applies to both trespassers
trespassers must vary and persons entering by
according to his knowledge, invitation or licence
ability and resources o Reasonable to hold that an
- Young v Kent County Council occupiers must do more to
o School could have easily protect a person who he
prevented access permits to be on his
property
Notices as a way of excluding liability Notices as a way of excluding liability
- S. 2 (1) OLA 1957 - S. 2 (1) OL(S)A 1960
o Common duty of care owed o Cannot exclude liability
to all visitors except when the occupier is
o Can exclude liability by way entitled to
of notice  Extend
- S. 2 (2) OLA 1957  Restrict
o Cannot exclude liability for  Modify
negligence unless  Or exclude liability by
unreasonable agreement
- S. 11 (3) OLA 1957 - S. 2 (3) OL(S)A 1960
o Fair and reasonable to rely o Nothing in the act shall be
liability to exclude notice held to impose an obligation
having regard to all towards a person entering
circumstance premises
 - S. 1 (5) OLA 1984 o & is accepting of the risks
o Duty owed may be o Volenti
discharged by taking
reasonable steps to give
warning of danger
Substantive Difference in Scotland
- No need to consider whether entrant within scope of act
- No distinction between visitors and contractual entrants
- Damages awarded for same type of loss to all entrants

Land Torts
Introduction
- 3 different actions
1. Private Nuisance
 Protects 3 types of interest
a. Rights in the use of land
b. Rights in the enjoyment of land
c. Rights in land – protection from physical damage
2. Public Nuisance
 Two key elements
a. Infringement of some public right
b. Proof that the C has suffered harm to markedly greater degree
than others
3. Statutory Nuisance
4. Strict Liability
- Nuisance is less concerned with the nature of the D’s conduct
o But its effect
- Rylands v Fletcher
o Strict liability nuisance
o Created by this case
- Scope of Nuisance Law?
o Actionable under civil law
o Public nuisance can also be a criminal offence

Private Nuisance
- Private Nuisance
o Consists of continuous, unlawful and indirect interference with the use or
enjoyment of land, or over some right over or in connection with it
o Basically
1. Interference
2. Unlawful
3. Continuous
 - Damage must relate directly to the land
o Law assumes that there will be some sort of tolerance from neighbours
- Interference must be
o Substantial and unreasonable
- Remember!
o Private nuisance does not address personal injury
o This area is concerned only with
 Omissions causing violation of interest
 Acts causing violation of interest
- Difference between Nuisance and Negligence?
o The way fault is treated
 Nuisance = subjective
 Negligence = objective
Unlawful
- Unlawful interference
o Is unreasonable
 This is determined by balancing rights of landowner
 With a view to all circumstances to determine their effect on another
land owner
- Interference
o Colls v Home and Colonial Stores
 Deprivation of light
 It cannot be disputed that some diminution of lights caused by the D’s
buildings
 But partial inconvenience rather than serious injury = not liable

Unreasonable
- There is no threshold to determine when a disturbance becomes unreasonable of
substantial
o Case by case
- Stuges v Bridgeman 1879
o Magnitude and unreasonableness are context dependant
- Leakey n National Trust 1980
o Wrong to assume that the reasonableness of the D’s conduct is irrelevant
consideration

Continuous – Seriousness of the Harm

- Duration
o DE Keyser’s Royal Hotel Ltd v Spicer Bros Ltd 1914
 Pile driving at night
 Was a short lived activity (duration not there)
o Cunard v Antifyr Ltd 1993
 Nuisances, at least in the vast majority of cases, are interferences for a
substantial length of time
- One off Nuisance
 o Basis that the situation which gave rise to the incident was a continuing state
of affairs
o Spicer v Smee
 Faulty wire
 A one off
 Cause a fire
 The Nuisance
- What about isolated events?
o More likely to be actionable under Rylands
o Why is this?
 b/c private nuisance has the element of continuousness

Interference with Use and Enjoyment of Land

- Proof of damage = IS necessary
o No damage = NOT actionable
- Balancing act here
o Between rights
 There must be a give and take between neighbours
- Andreae v Selfridge & Co
o Loss of a night’s sleep isn’t actionable
- Thompson – Schwab v Costaki
o Use of the adjoining premises for brothel
 Held to be nuisance even though there was no direct infringement
- But there can be 2 types of actionable damage as established in
o St. Helen’s Smelting Co v Tipping 1865
 The law does not regard trifling and small inconveniences.
Inconveniences which sensibly diminish the comfort of the property
which is affected.
 Facts
 Noxious fumes from a smelting factory
 Damaged trees and shrubs
o The Rule Established
1. Material Damage
 Physical Damage
2. Loss of amenity
 Smell & noise
 Things that are not tangible
o Example  value of a property diminishing due to a
land tort
 Bone v Seal 1975
o Smells from a pig farm

Who Can Sue in Private Nuisance?

- This is a land based tort
o Thus only those with a possessory or proprietary interest in land can sue
  Examples  owner or tenant
o AKA you must have some type of interest in land
- Must be against persons who bear
o Some degree of personal responsibility
- Example
o Creator or authorisers of the nuisance
- Hunter v Canary Wharf 1996
o Television signal interrupted from construction And dust as well was bad
o Held
 Confirmed that
 Only those with an interest in land could bring an action
 Television signal is an actionable nuisance
o
 But not when caused by a fixed structure
- Khorasandjian v Bush 1993
o This case suggested that maybe an interest in land isn’t required
 An exception to the rule
Additional Cases
- Malone v Laskey 1907
o Injured when vibrations generated by the D caused an iron bracket designed
to support a lavatory cistern to fall off the wall and onto her head
o Held
 Claim failed because she had no legal or equitable interest in the land
 A person who is merely present in the house cannot complain of
nuisance
- Read v Lyons & Co
o He alone has a lawful claim who has suffered an invasion of some proprietary
or other interest in land
- Masters v Brent Lbc 1978
o Successor in title – continuing nuisance
 Can sue even if the interference began prior to their acquisition

Those with Easements & Profits á Prendre

- Hunter v Canary Warf
o Lord Goff
 Nuisance is a tort against land, including interest in land such as
easements and profits
- Nicholls v Ely Beet Sugar Factory Ltd No.1 1931
o Profit a prendre
 C can sue without the need to prove that he holds title to land

Who Can Be Sued in Private Nuisance?

- Potential Defendants
o Creator of the nuisance
 Including when the D is no longer an occupant
o Occupier of land
 - Sedleigh – Denfield v O’Callaghan 1939
o Drain flooded land from a blockage
o D’s were liable b/c they were aware of the problem and failed to repair it
o

Positive Duty on Land Owner?

- SO… is there a positive duty on a landowner to address nuisance?
o YES  Landlord may have a positive duty
- Tetley v Chitty 1986
o Property let for go-cart racing
o Landlord held liable
 Why?
 The nuisance was a natural consequence of letting the
property
- Lippiatt v South Gloucestershire County Council 1999
o Failure to evict someone from property causing a nuisance = liable
- Hussain v Lancater City Council 1999
o Racist activities of a tenant
 Is not nuisance

Special Factors
The Location
- Sturges v Bridgeman 1879
o What would be a nuisance in Belgravia would not necessarily be so in
Bermondsey
- Location can impact the level of nuisance the occupier is expected to tolerate
- St. Helen’s Smelting Co v Tipping
o Locality can only be taken into account in relation to amenity

Planning Permission
- Planning permission
o Changing the nature of the locality
- Gillingham BC v Medway (Chatham) Dock Co 1993
o Changed the area from a residential to industrial area
o This has now been overruled
- Wheeler v Saunders 1996
o Expansion of pig farming enterprise
o Was not held to be a change in the locality
 b/c the same purpose was still held
- Coventry v Lawrence No. 1 2014  CURRENT LEADING CASE
o Planning permission cannot in of itself be a nuisance
 It will be a relevant factor for the court to consider
o AKA
 Now planning permission is only a factor to consider
o Planning permission could not change the character of a neighbourhood
- When considering if planning permission has changed the nature of the locality
 o There is a strong public policy element
 Thus planning permission will now be decided on a
 Case by case basis
- Barr v Biffa Waste Services 2012
o Even with a permit
 It doesn’t exclude liability for a nuisance

Sensitivity of the Claimant

- Unreasonably high standards
o Won’t usually fly!
- Robinson v Kilvert 1889
o Storage of delicate paper = special sensitivity
o Only a C with ordinary sensitivity is entitled to sue
o Unfair to increase the landowners liability if the C is applying his own
property to special uses
- McKinnon Industries v Walker 1953
o Loss to orchids = not special sensitivity
 b/c it would also impact ordinary things (or person) thus in this
circumstance special sensitivity doesn’t exist
- There is case law to suggest that the courts are moving away from this
o Network Rail v Morris 2004
- Moy v Stoop
o Crying child
o Not a land tort
 b/c it was innocent and unavoidable

The Utility of the Defendant’s Conduct

- If nuisance is caused by the D’s employment
o It doesn’t automatically make the nuisance acceptable
o Adams v Ursell 1913
 Popular but smelly fish and chips shop
- Social Utility  MAY ABSOLVE LIABILITY
o Miller v Jackson 1977
 Nuisance from cricket club
 No injunction granted – damages
o Kennaway v Thompson 1981
 Motor boat racing = injunction granted
o Smith v Giddy
 C was a commercial grower of fruit
 Occupation was compromised by neighbours large overhanging trees
 Shading the fruit trees
 Held by the court to be liable b/c it was impacting his buisness

The Defendant’s Motive - Character

- Deliberate + malicious conduct
o Will be a nuisance
 - Hollywood Silver Fox Farm v Emmett 1936
o Fired gun to stop foxes from mating
o Held to be malicious conduct
- Christie v Davey
o Neighbour was a piano teacher
o Annoyed with the noise so began to hit the wall/objects when piano started
playing
o Piano teacher brought claim, held that D’s conduct was malicious

Positive Duties Arising From Acts of Nature

- If something natural occurs on the D’s land
o If D fails to correct/ fixt it he may be liable in nuisance
- Glodman v Harrave 1967
o Natural accident  lightning strike causing fire
o But the D failed to mitigate its effect and was thus held liable
- Leaky v National Trust 1980
o Natural mound collapsed, and D had been given warnings of this
o Was liable b/c he failed to address it
- Holbeck Hall Hotel Ltd v Scarborough Borough Council 2000
o Would have only know the land may have been vulnerable to a landslip if he
had gotten an extensive geo survey
 Thus was held not liable
 b/c this was too unforeseeable
- Delaware Mansions Ltd v Westminster City Council 2001
o Liable for damage caused by tree roots
 b/c they knew or should ought to have known about this

Defences to Private Nuisance

- KEY
o You cannot argue that the C should have been aware of the nuisance
o Miller v Jackson
 Built house next to cricket pitch
 Successful claim
 Even though they were aware of the existence of the pitch

Prescription
- 20 years = acquisition of legal right
o Which acts as a defence to nuisance
- Sturges v Bridgeman 1879
o Strict interpretation from the court
o Long standing confectionery business
 No nuisance until the C moved his office to the other side
o No dice with prescription
- With prescription
o The courts will apply this defence strictly
Remedies
Injunction
- Most sought after remedy
- Injunction
o Ends or reduces the nuisance
- De Keyser’s Royal Hotel Ltd v Spicer Bros Ltd
o Limit the noise to working hours

Damages
- Damages in Lieu of Injunction
o Elements are established Shelfer v City of London Electric Lighting Co 1895
1. Infringement of legal rights = small
2. Capable of being estimated in money
3. Something that can be sufficiently compensated for
4. Small money payment
5. Where an injunction could be oppressive
- Exceptions to Shelfer criteria?
o Miller v Jackson
o Dennis v Ministry of Defence
 Private nuisance + HR claim under Art. *
- Coventry v Lawrence No. 2 2014
o There may be some wiggle room from the Shelfer Criteria
 b/c sometimes damages are not adequate
 take a broader account of everyone’s legal rights

Abatement
- Not widely used
- Abatement
o AKA  Self – Help
 C takes steps to stop the nuisance themselves
o The danger with abatement is that it is a criminal offence if applied wrong
 As per Burton v Winters 1993
- Where has it been used correctly?
o Delaware Mansions Ltd v Westminster City Council 2001
 Was ok for the council to pay to have roots removed

Statute & Private Nuisance

- Public body acting under statutory powers
o = defence to nuisance claim
o especially if the nuisance is unavoidable outcome of an authorised activity
- Allen v Gulf Oil Refining Ltd 1981
o Local inhabitants – claim
 b/c of smell, noise and vibrations from a refinery
o This was an authorised activity by statute
 Thus no liability
Public Nuisance
- Public Nuisance
o Is an act which – materially affects the reasonable comfort and convenience
of life of a class of Her Majesty’s subjects
 As per Attorney General v PYA Quarries 1957
- Act or omission that
o Endangers the  life, health, property, comfort of the public
- Public nuisance is
o Very different from private nuisance
o It is both a tort + criminal offence
 Therefore there is a higher standard when trying to establish public
nuisance
o No interest in land is required
 Castle v Augustine’s Links 1922
 Hit by golf ball on highway
 Liable in public nuisance
- It is essential that there is a common injury
o Some sort of infringement of a public right

Who Can Sue in Public Nuisance?

- Class or Section of the public
o Thus action is usually brought by
 Local authority
 Authority  S. 222 Local Government Act 1972
 OR attorney general
- Individual?
o Only in the case of special damage
o Tate & Lyle Industries v GLC 1983
 Silt on the Thames affected their business
 Special damage!
- You cannot add together small instances to create a public nuisance
o As per R v Rimmington 2006

Circumstances Giving Rise to Special Damage

- D usually creates a danger
o On or obstructs the highway or the adjacent pavement
o Falling fences
- There are two situations that give rise to an individual suing in public nuisance
1. D commits an interference – resembles a private nuisance
 But this affects a greater number of people
2. This situation doesn’t resemble a public nuisance
 AKA  doesn’t affect the C’s land or enjoyment of it
Who Can Be Liable in Public Nuisance?
- The creator of the nuisance
o EASY
 Only one person!

What Kind of Damage is Covered by Public Nuisance?

- Damages can be recovered for
o Halsey v Esso Petroleum 1961
 Property damage
 This case was successful in private and public nuisance
o Rose v Miles 1815
 Obstruction of or damage to a public highway
o Calimants in Corby Group Litigation v Corby BC 2008
 Personal injury
 Council didn’t oversee construction
 Metal being blown about – poisonous
 Babies born in the area with birth defects
o Benjamin v Storr 1874
 Economic loss
 Entrance to coffee shop was blocked

Remedies in Public Nuisance (basics are above)

Injunction
- Seek injunction via
o Local Government Act 1972
 To secure the promotion and protection of the interest of the
inhabitants
Damages
- Public nuisance is usually dealt with in damages
- Fritz v Hobson
o Access blocked to shop, damages given

Rylands & Fletcher  Strict Liability

- Rylands v Fletcher
o Established a new tort  Strict Liability
o Elements are as follows
1. Non-natural use of land
2. D brings onto his land and collects and keeps there
3. Something likely to do mischief if it escapes
4. It does escapes
5. And causes foreseeable damage
Non – Natural Use
- Non-natural
o Is a complex element in tort
o And is a fluid concept
 - Rickards v Lothian 1913
o Some special use brings with it increased danger to others and which must
not merely be the ordinary use of the land
 AKA  unusual uses of land
o Sink blocked & it overflowed
 Could not be described as a non-natural use therefore no liability
- Quantity
o Can be an aggravating factor
- Transo Plc v Stockport MBC 2003  most up to date definition
o Non natural
 Must involve an exceptionally dangerous or mischievous thing in
extraordinary or unusual circumstance
o Facts
 Water pipe installed by D – burst leading to a landslip
 Ryland = unsuccessful
o Why?
 b/c water pipe was not a non-natural use of land
 Ryland’s principle should remain separate from Negligence or
nuisance

Non-Natural Use vs. Natural Use

Natural Use Non-Natural Use

Read v Lyons 1947 Mason v Levy Autoparts 1967
- A munitions factory in war time - Large quantity of inflammable auto
parts
Transo Plc v Stockport MBC 2003 Cambridge Water Co v Eastern Countries
- Domestic water supply to flats Leather 1994
- Large quantity of industrial
chemicals

Accumulation
- Can be something artificial
o Giles v Walker 1890
 Failure to cut thistles = not accumulation

Things Likely to do Mischief If They Escape

- The things do not have to be dangerous
o Only capable of mischief if it escapes
- Rylands
o Storage of large quantity of water in artificial reservoir
 Storage = risk
 Escape = cause of damage
Escape
- Ryland
o The risk materialised when the water flooded neighbouring property
 - Read v Lyons & Co 1947
o Explosion from munitions factory
 Explosion was located only in the factory
 Thus no liability
o The escape must literally LEAVE the place of storage
- Rigby v Chief Constable of Northamptonshire 1985
o Deliberate - Release of tear gas
 This is trespass
 NOT a land tort
Foreseeability of Damage
- Damage must be to
o Land or property on the land
- Old law
o Read v Lyons & Perry v Kendrick 1956
 Assumed that personal injury damage was included
- Current law
o Cambridge Water v Eastern Counties Leather 1994 & Transco
 Case clarified that Ryalnds is closely related to nuisance
 And only pertains to land torts
- Cambridge Water v Eastern Counties Leather 1994
o Tanning operation, storage of chemicals seeped into water supply
o Point of law
 Damage must be reasonably foreseeable
 Foreseeability of damage of the relevant type should be
regarded as a prerequisite of liability in damages under the
rule
o This type of damage was unforeseeable thus D wasn’t liable
- Personal injury
o Is reserved for negligence claims
- Savage v Fairclough
o Pig farmer
o Held not liable for pollution of the C’s water
 b/c pollution had not been reasonably foreseeable

Defences to Ryalnds v Fletcher

Consent
- Aka volenti
- Carstairs v Taylor 1871
o Rain water on roof
o No Ryalands liability
 b/c rat bit through container holding the water
- Colour Quest v Total Downstream UK Ltd 2009
o Consent
 Cannot operate if the D was negligent
Act of a Stranger
- If a 3rd party interference = no liability
o Perry v Kendricks 1956
 Child trespasser threw a match at petrol  BOOM

Act of God
- Exceptional event
- Nicholas v Marsland 1876
o Very heavy rainstorm
 Excluded liability
o This situation probably wouldn’t fly today

Liability for Fire?

- In England
o There is no strict liability for the spread of fire
 Accidental spread of course
o As found in Fires Prevention (Metropolis) Act 1774 S. 86
- But if the fire was caused by negligence or nuisance?
o There is liability
o Stannard v Gore 2012
 Fire is not considered an escape under Rylands
- The dangerous thing must escape

Statutory Nuisance
- There is a relationship between Ryland’s & Statue
o Most of what is covered by Ryland’s can be found in statute
 Environmental Protection Act 1990
 Clean Air Act 19993
- Cambridge Water Co Ltd v Eastern Countries Leather Plc 1994
o Lord Goff
 So much well informed and carefully structured legislation is not being
put in place to effect environmental protections… there is less need for
the courts to develop a common law principle to achieve the same
end.
- But statute didn’t render the common law completely useless
o Common law can
 Still operate as an enforcement procedure
 To supplement statute

Comparing Private vs. Public vs. Ryland’s

Public Nuisance Private Nuisance Ryalnds
Who sues? one suffering One with interest in One with an interest
particular damage land in land
Who is sued? Creator or adopter Creator or adopter One who collects in
course of non-
natural user
Fault required? No Yes when continuing No
or adopting a
nuisance
Damages for Yes No No
personal injury
Time frame? Continuous Continuous One off

Difference Between Public and Private Nuisance?

Public Nuisance Private Nuisance
- Crime + Tort - Only a tort
- No interest in land required - Only those with an interest in land
can sue
- Damages - Damages
o Are recoverable for personal o Are NOT recoverable for
injury personal injury
- Isolate incident may give rise to a - Must be an ongoing state of affairs
claim to sue
- C must be class of subjects - Individual may sue
o Who suffered damage over
and above the rest of the
class
Remember! The Same wrong may be both PUBLIC and PRIVATE

Human Rights Implications in Nuisance

- All about balancing the rights of the parties
- HRA 1998
o The act imposes a positive obligation on all public authorities
- When is Human Rights involved?
o When a local authority comes into play
o Why?
 b/c public authorities have resources
 They are also constrained by wider public obligations
 Must account for this in their activities
- BUT keep in mind
o That public benefit/ public interest may override remedy sought
- Marcic v Thames Water Utilities 2002
o Failure to maintain sewers – resulted in increased flooding
o Action was brought in public and private nuisance
 Private nuisance claim was successful
o Human rights claim – public nuisance
 There was no decision in relation to the HR claim
  But the court did suggest that they could be persuaded that art. 8
rights had been breached
- What HR could be impacted?
o Art. 8
 Right to private and family life
o Protocol 1
 Peaceful enjoyment of possessions
- Denis v Ministry of Defence 2003 – HR ACCEPTED
o Planes constantly flying over property for military training purposes
o Held – claim succeeded in private and public nuisance
 BUT – Public nuisance
 Damages were given in lieu of injunction
 Why?
b/c there was a public interest in continuing military training