Thursday, 22 October 2020

Torts Connected to Land: Private Nuisance

 L.O:

  1. Define private nuisance and identify the main features
  2. Identify the three types of private nuisance
  3. Explain the requirement for an interest in the land
  4. Explain the requirement for unreasonable use of land
  5. State the importance of showing damage, injury or loss of convenience
  6. Explain the main defences available
  7. Identify the remedies available
What is a Private Nuisance?
A private nuisance is an interference with a person's enjoyment and use of his land. It is a civil action.

Nuisance
When the courts and law reports refer to a 'nuisance', they are usually referring to a private nuisance and not a public nuisance.
When statute law refers to a 'nuisance', it usually means both public and private nuisance unless otherwise stated

Types of Private Nuisance
Private nuisances are of three kinds:
  1. Nuisance by encroachment on a neighbour's land e.g the roots from a tree in a person's garden grow under the ground and into their neighbour's garden, damaging the foundations of their house
  2. Nuisance by direct physical injury to a neighbour's land e.g Driving a car over a neighbour's garden, damaging it
  3. Nuisance by interference with a neighbour's quiet enjoyment of his land e.g playing music all through the night and every night preventing the neighbour from sleeping
Key Cases
  •  Hunter and Others v London Docklands Corporation (1997)

    • The case arose from the construction of a tower block at Canary Wharf in East London. An action concerning the effects of the construction work was brought by local residents,
    • ISSUE - whether excessive dust could be sufficient to constitute damage to property for the purposes of negligence, and whether an interest in property was required to bring an action (some claimants were children or simply rented their property)
    • CA HELD - The mere deposit of dust was not in itself sufficient because dust was an inevitable incident of urban life. In order to bring an action for negligence, there had to be damage in the sense of a physical change of property, which rendered the property less useful or less valuable. Examples given by the court included excessive dust being trodden into the fabric of a carpet by householders in such a way as to lessen the value of the fabric, or excessive dust causing damage to electrical equipment
    • Also HELD - only householders with a right to land could bring an action in private nuisance
      • In doing this, the House of Lords rejected the decision in Khorasandjian v Bush (1993) but upheld the decision in Malone v Laskey (1907)
  • Hunter and Others v Canary Wharf Ltd (1997)
    • The claimants complained that the erection of the Canary Wharf tower interfered with their television reception
    • ISSUE - whether interference with television reception was capable of giving rise to an actionable nuisance
    • HELD - there is no right of action in nuisance for interference with the television reception. It's the same as the obstruction of a view
Side Note
  • In property law - one can reserve one's right to something by creating a covenant, which is an agreed clause in a contract or lease that stipulates that one will be able to enjoy these things when one buys a property and can sue if it is infringed
  • An easement is likewise a right of access over land that can be enforced in property law

Types of Private Nuisance
Private nuisances are of three kinds:
  1. Nuisance by encroachment on a neighbour's land: the roots from a tree in a person's garden grow under the ground and into a neighbour's garden, damaging the foundations of the neighbour's house
  2. Nuisance by direct physical injury to a neighbour's land: driving a care over a neighbour's garden, damaging it
  3. Nuisance by interference with a neighbour's quiet enjoyment of their land: playing music all night every night, preventing a neighbour from sleeping

What is interference?
There are three elements to proving a private nuisance by interference:
  1. An indirect interference with the enjoyment of the land
  2. The interference was unreasonable
  3. The interference has caused damage
The nature of the interference must be continuous, rather than a one-off event.
  • The key is whether the nuisance complained of makes it physically unpleasant for you to remain in your property - which will include things like pig smells
  • The more physical the interference, the more likely it is that you will establish your claim or injunction
  • You cannot complain about the spoiling of 'things of delight' such as a view. - decided as such in Bland v Mosely (1587)
Cases:
  • Davey v The Harrow Corporation (1958)
    • Tree root encroachment
  • Sedleigh Denfield v O'callaghan (1940)
    • A grate negligently placed over a drainage pipe led to blockage which in turn caused damage
  • Christie v Davey (1893)
    • Defendant's banging on the wall with a tray to disrupt music lessons was deemed malicious
  • Wheeler v JJ Saunders (1995)
    • Held that the granting of planning permission is one way of doing what you want with the land you own/occupy, but if you cause a nuisance it will not protect you from an action in tort
  • Thompson Schwab v Costack (1956)
    • Running a brothel in an otherwise respectable street (this would have impacted on property valuations so the nuisance was tangible)
Private Nuisance Claims Against the Occupier
  • The occupier of land can be open to a claim for nuisance that they continue or prolong. This is especially the case where hazards occurring naturally are concerned. If an occupier is aware of their existence and does nothing about them or fails to take reasonable precautions, then this is the same as creating a nuisance
  • Leakey v National Trust (1980)
    • Court had to decide what was reasonable for the defendant to do by way of preventing a landslip occurring that was predictable, and which did happen
    • A factor in deciding this was the financial means of the defendant to do something to prevent it. The National Trust had means to act but failed, and their inaction was therefore unreasonable
  • Holbeck Hall v Scarborough Borough Council (2000)
    • Defendant owned the land between the claimant's hotel and the sea
    • Landslip took place
    • Council held liable, but deemed not liable on appeal. In assessing the scope of the duty imposed under the principle in Leakey v National Trust (1980) the courts are to take into account the resources of the defendant
    • It was decided that laying down a rule which requires every defendant in every case to make a physical and economic effort in unsought circumstances would be unjust and unfair. 
    • Resources need to be taken into account, but they must be assessed in every case
  • Bybrook Barn Garden Centre v Kent County Council (2001)
    • Claimant's garden centre damaged by flood water that came through a culvert or drainage pipe that had to deal with increased drainage due to change in land use in the surrounding area
    • Held - CoA agreed with the test set out in Leakey v National Trust (1980),  but someone with the resources of the Council would probably be obliged by law anyway to resolve the hazard - if there is that kind of state expectation, it isn't unreasonable to suppose they have the resources to do so
When is someone with an interest in the land actually liable as a defendant?
  1. Where a nuisance existed before the owners rented the land or permitted occupation of it - and they actually knew or should have known about the nuisance
  2. Where there is an ongoing obligation on the part of the owner to carry out repairs etc
  3. Where the owner can be said to have actually authorised the nuisance
Even more cases:
  • Wringe v Cohen (1940)
    • Defendant's house was in structural disrepair and it fell, causing damage to the claimant's shop. Defendant sued for negligence and nuisance. CoA upheld the claim in nuisance
  • Tetley v Chitty (1986)
    • A council who allowed their land to be used for go-kart racing was liable for the noise nuisance - as they ought to have known of the likely nuisance arising
  • Lippiat v South Gloucestershire City Council (1999)
    • The council was deemed responsible for the anti-social activities of a group of travelers that it had permitted to use the council land
    • The nuisance carried out by guests or licensees must actually be carried out from the land to the detriment of the claimant - it is not enough that the guests are simply noisy or disruptive
  • Hussain v Lancaster City Council (1999)
    • The council tenants were not actually using the land - their behaviour meant that their occupation of the land was incidental, and not part of the nuisance that they were causing
    • The nuisance must involve some connection (physical) with the land
  • There has to be a very high probability that the land given over to the tenants or guests will be used for a purpose that gives rise to a nuisance - a mere possibility of this is not enough
  • Cocking v Eacott (2016)
    • Deals with the issue of whether to sue an occupier or a tenant. The case centred on who was responsible for a dog barking
    • There was no formal lease. The daughter merely had permission (license) to stay
    • Court held that the mum was still the occupier as she controlled the property and could enter at will
Not all Annoyances are Actionable

Just because something is an annoyance does not mean it is actionable in private nuisance. For example, interference with television signals by a building is an annoyance but is not actionable as a private nuisance

Characteristics of a Private Nuisance
A private nuisance has the following key elements:
  • The claimant must have an interest in the land
  • There must be unreasonable use of the land which is the source of the nuisance
  • The claimant must suffer some harm
An Interest in the Land
  • A claimant must have an interest in the land affected by the nuisance in order to make a claim of private nuisance. In effect, an 'interest in land' means a person must own or have a right over the land and can make a claim of private nuisance
  • Persons such as visitors, family members and lodgers do not have an interest in the land and cannot make a claim of private nuisance
An Interest in Land: Exclusive Possession
  • In effect a person who is in exclusive possession of the land is regarded as having an interest in the land.
  • In Foster v Warblington UDC (1906) - the claimant was able to bring a claim of private nuisance because he was in exclusive possession of the land even though he could not prove his title to it
Foster v Warblington UDC (1906)
  • The claimant was an oyster merchant who for many years had been in occupation of oyster beds artificially constructed on the foreshore. The claimant excluded everybody from the oyster beds, and nobody interfered with his occupation of the oyster beds or his removal and sale of oysters from them. However, the claimant could not prove ownership of the oyster beds
  • Held - the claimant could bring an action in private nuisance caused by the discharge of sewage by the defendants into the oyster beds, notwithstanding that he could not prove his title. Occupation was sufficient
Malone v Laskey (1907)
  • A company had rented a house for one of their managers to live in. The wife of the manager was injured when a bracket in a lavatory fell on her head caused by the vibrations of machinery on the defendant's property
  • Held - the Court of Appeal decided that the wife could not make a claim of nuisance because she had no interest in the property
Khorasandjian v Bush (1993)
  • The daughter of a property owner brought an action to obtain an injunction against a man who was harassing her including making nuisance telephone calls. The county court granted an injunction preventing the defendant from 'harassing, pestering or communicating' with the claimant
  • It was argued by the defence that the injunction could prevent the defendant from assaulting or threatening to assault the claimant because that was covered by the tort of trespass to the person
  • However, it was argued by the defence that the current wording of the injunction did not reflect any known tort
  • The Court of Appela held that the wording of the injunction should remain unaltered. As part of their reasoning they argued that the telephone harassment was covered by the tort of private nuisance because it was an actionable interference with her ordinary and reasonable use and enjoyment of property where she is lawfully present
  • The Court of Appeal was particularly concerned that at that time there was no alternative action the woman could take. The woman would now be able to obtain protection under the Protection from Harassment Act 1997
Dobson v Thames Water (2009)
  • Claimants complained of odours and mosquitoes affecting their properties from the activities of the defendant in the conduct of their adjoining Sewage Treatment Plant
  • Issue - the rights of non title holders to damages in nuisance and related causes
  • HELD - damages in nuisance are for injury to property and not to the sensibilities of the occupiers

Unreasonable Use of Land
The use of the land which is the source of the nuisance must be unreasonable for a claim of private nuisance to succeed.
In deciding whether the use of land is unreasonable, the courts will consider factors such as:
  • The sensitivity of the claimant
  • The duration of the nuisance
  • The character of the area
  • The reasonable foreseeability of the type of damage and
  • Any malice on the part of the defendant
Sensitivity of the Claimant
  • The standard of tolerance is that of the reasonable person and ordinary land use
  • Abnormally sensitive claimants or using land for an unusual purpose that makes it sensitive to disruption, are unlikely to succeed in a claim for private nuisance
Robinson v Kilvert (1888)
  • The defendant let a floor of his property to a tenant to be used as a paper warehouse. The claimant brought an action to prevent his landlord from heating the cellar, on the grounds that the rising heat dried his special brown paper, making it less valuable. Ordinary paper would not have been damaged
  • Held - There was no private nuisance. CoA argued that a person who carries out an exceptionally delicate trade cannot complain because it is injured by his neighbour doing something lawful on his property, if it is something which would not injure anything but an exceptionally delicate trade
Mckinnon v Walker (1951)
  • Defendant manufactured iron products 600ft from claimant's property
  • Claimant brought action in relation to noxious fumes and smuts which had deposited over his shrubs, trees, hedges and flowers, causing them to die (work in his premises was undermined completely)
  • HELD - the defendant's actions constituted a nuisance and the claimant was entitled to damages in respect of the orchids, despite the sensitive nature of the flowers
Network Rail v Morris (2004)
  • Claimant ran a recording studio close to a main railway track
  • New track circuits were installed that generated an electro-magnetic field which interfered with the use of electric guitars at the studio, which resulted in the loss of several clients
  • Brought an action in nuisance for interference
  • HELD - defendant not liable. The use of amplified electric guitars fell into the category of extraordinarily sensitive equipment. Furthermore the interference was not foreseeable
Duration and Time of the Nuisance
The duration and time of the alleged nuisance can determine whether a private nuisance has been created
  • Halsey v Esso Petroleum Co Ltd (1961)
    • The High Court held that a private nuisance was created by noise at night from boilers and road tankers. Apparently the noise caused by filling petrol tankers was reasonable and so not a nuisance at 10am, but was a nuisance when it happened at 10pm. As well as this, there was damage to car bodywork because of the fumes. This is obvious property damage and so it was successful
  • Generally speaking the courts require a private nuisance to be a continuing state of affairs
  • However, there are exceptions to this requirement. For example, in Crown River Cruises Ltd v Kimbolton Fireworks Ltd (1996), a firework display that set fire to some moored barges was held to be a private nuisance
  • Spicer v Smee (1946)
    • Fire broke out on defendant's property as a result of faulty wiring
    • The fire spread to a neighbouring property owned by the claimant. The claimant's action for nuisance succeeded. The faulty wiring was classed as a continuing state of affairs
The Character of the Area
The character of the area in which the alleged nuisance occurred is relevant in deciding whether there is a private nuisance
Sturges v Bridgman (1879)
  • The claimant was a doctor who sued a confectioner for the noise caused by his industrial equipment. The court took into account the fact that the area in which they both worked consisted mainly of doctor's consulting rooms and concluded that there was a nuisance, explaining that what would be a nuisance in a quiet residential area would not necessarily be so in a busy industrialised one
Miller v Jackson (1977)
  • The claimants moved into a house beside a cricket club. Cricket balls were frequently hit into their garden, and they attempted to get an injunction against the club to stop play. The Court of Appeal agreed that the cricket club had committed a nuisance, but refused to grant an injunction because of the usefulness of the club to the local community, which outweighed the interests of the claimants
St Helen's Smelting Co v Tipping (1865)
  • It was held that although the character of the area is important, it did not prevent a successful action in private nuisance for damage to property. In this case, damage caused by vapours from a factory were held to be a private nuisance even though there were many other factories in the neighbourhood that also emitted vapours
  • It was held that claimants should be prepared to put up with the level of discomfort common to the area in which they are situated. However, claimants are not expected to put up with actual damage to their land resulting from the normal activities of the locality, and so an injunction was granted
Wheeler v Saunders Ltd (1994)
  • The claimant owned a house which was next to a farm. He claimed that a private nuisance had been created by the granting of planning permission for the building of two new pig houses where the smell of the pigs and their excrement was interfering with his use and enjoyment of the house
  • The defendant argued that the granting of planning permission changed the character of the area so that what would have once been a private nuisance was no longer a private nuisance
  • CoA Held:
    • The granting of planning permission did not alter the character of the area and therefore what was once a private nuisance is still a private nuisance
    • The granting of planning permission does not authorise the creation of a private nuisance
    • The defendants were liable
Gillingham Borough Council v Medway Docks (1993)
  • Defendant obtained planning permission to turn a disused dockyard into a commercial port operating 24 hours a day
  • Local residents brought an action in PUBLIC NUISANCE in relation to the noise created by heavy goods vehicles throughout the night
  • HELD - not liable. It was decided that where planning permission is given for a development or change of use, the question of nuisance will be decided by reference to a neighbourhood with that development or use and not as it was previously
Lawrence v Fen Tigers (2014)
  • Claimant claimed that the noise generated by motor sports at a nearby stadium was a nuisance
  • HELD - claim failed. Planning permission had changed the nature of the locality so the noise was not a nuisance
Coventry and others v Lawrence (2014)
  • The Supreme court stated that there will be occasions when the terms of a planning permission may be of some relevance in a nuisance case, but defendants cannot rely on this as a defence
Coming to a Nuisance
It is no defence in a case of private nuisance to argue that the nuisance was there long before the claimants came to it

Acts of Malice
An act of malice can lead to a successful action for private nuisance even though the defendant might be abnormally sensitive or if the act would not usually amount to an unreasonable use of land

Hollywood Silver Fox Farm Ltd v Emmett (1936)
  • The claimant company was a fox fur farm. The defendant, an adjoining landowner, maliciously caused his son to discharge a shotgun on his own land as near as possible to the fox pens to interfere with the vixens during the breeding season
  • Held - the claimant was entitled to an injunction and damages for the private nuisance. Although it was not unreasonable for a farmer to use a shotgun on his own land and the keeping of a fox fur farm might not be an ordinary use of land, the defendant had acted maliciously. It was also irrelevant in this case that the vixens were unusually sensitive to noise during the breeding session
Christie v Davey (1893)
  • Claimant gave music lessons and parties. Defendant got annoyed and started to make noise back in retaliation
  • Claimant sued in nuisance
  • HELD - the court found in favour of the claimant purely because the response of the defendant was guided by malice
Reasonable Foreseeability of Type of Damage
  • To succeed in an action in private nuisance it does not need to be shown that the defendant has taken reasonable care to avoid causing a nuisance (i.e harm, damage or inconvenience)
  • However, it does need to be shown that the type of nuisance was reasonably foreseeable. This type of foreseeability was established in Wagon Mound (No.1)
  • In Cambridge Water Co v Eastern Counties Leather PLC (1994), the House of Lords emphasised that nuisance required foreseeability of the type of damage as established in Wagon Mound (No.1)
Damage
Private nuisance is not actionable per se. There must be some damage, harm, injury or inconvenience

Network Rail Infrastructure v Williams (2018)
  • Concerned the spread or encroachment of Japanese knotweed from the defendant's land
  • On one hand this was a case where no actual physical damage had occurred; on the other hand the damage was the loss of value of the properties, because the knotweed was so hard to get rid of that it had a direct effect on the attractiveness of the properties to potential buyers

Liability for Private Nuisance: Occupier
An occupier is liable in private nuisance if they bear some personal responsibility for it. This means that:
  • If the private nuisance was created by an act of a stranger, the occupier is liable if they know or ought to know about it
  • If the private nuisance was created by an act of nature, the occupier is liable if they know or ought to know about it
  • If the private nuisance was created by the previous occupier, the current occupier is liable if they know or ought to know about it
Liability for Private Nuisance: Landlord
A landlord is liable in private nuisance if:
  • The landlord authorises the tenant to commit a private nuisance
  • At the date of letting, the landlord knows or ought to know of the private nuisance
  • A private nuisance is created during the tenancy and there is no agreement between the landlord and tenant making the tenant responsible for such repairs needed to remove the nuisance
Defences to Private Nuisance
The main defences to a private nuisance are:
  1. Statutory authority
  2. Prescription
Statutory Authority
It is a defence to private nuisance if the claimant can show that his or her conduct was authorised by law
Allen v Gulf Oil Refining (1981)
  • Claimant brought an action in nuisance for the smell, noise and vibrations created by an oil refinery which had been constructed on the defendant's land. The defendant's construction of the oil refinery was authorised by an Act of Parliament
  • HELD - The defendant was not liable as it had a defence of statutory authority
Barr v Biffa Waste Services (2012)
  • The defendants were operating a landfill site that required handling a certain kind of rubbish that was even more unpleasant than usual
  • Defendant's said that since they had been able to get a permit, they had statutory authority
  • HELD - Courts agreed up to a point, saying that the terms and conditions of the permit had not envisaged the problem and hence the extent of the smell was something that had arisen in excess of the authority given by statute
Watson v Croft Promo Sport Ltd (2009)
  • It was argued that planning permission had changed the nature and character of the surroundings, and that it offered a defence of the same kind as statutory authority
  • HELD - CoA held on the facts this was incorrect because it was still a largely rural area, but in principle they agreed the point

Prescription
  • The defence of prescription is a claim by the defendant that he or she has acquired the right to act in a particular wat because they have done so for 20 years. It is sometimes referred to as an 'easement by prescription'
  • However, this defence is based on property law and can be difficult to use in practice
  • In Sturges v Bridgman (1879) - prescription could not be used as a defence because although the defendant had used noisy equipment for more than 20 years, the moment the claimant doctor built his consulting room, only then did the noise become a nuisance. In other words it is not based on how long the act has been going on but rather on how long the act has been a nuisance
Reasonable Care and Skill
  • Allen v Guld Oil Refinery (1981) said that if the nuisance is the inevitable consequence of your activity then you have a defence
  • On the other hand, if a consequential nuisance can be avoided by reasonable care and skill, then any activity falling foul of that will be outside this defence and you will be liable for it
Things that are NOT defences to nuisance
  • Where an activity is of public benefit
    • this is only relevant insofar as the court will try to decide the case of nuisance fairly, by weighing up reasonableness and foreseeability by comparing the public benefit issue with the infringement of the claimants rights
    • At its most effective, the public interest issue may only serve to allow the defendant to continue the activity, but to stop it to the extent that it causes a nuisance and infringes the claimant's rights
      • Adams v Ursell (1913)
        • Defendant was obliged to move his fish shop to another part of the street so as not to infringe the claimant's enjoyment of his property with unpleasant fishy smells
        • The defence of public benefit - in that it was a source of quick and cheap food in an impoverished neighbourhood was deemed not to outweigh the nuisance inflicted on the claimant
    • In Miller v Jackson public utility of the cricket club did not offer a defence to nuisance where damages were payable for property damage even though the court decided that an injunction completely preventing the activity would be unfair given its use to the community
    • Dennis v Ministry of Defence (2003)
      • The social utility of training jet pilots meant that the MOD should not be prevented from carrying out this activity, but it did not mean that they should not pay compensation as and when appropriate because of the noise of the jets
  • Care and skill
    • Simply because an activity has been carried out with care and skill does not mean that a defendant has a defence to negligence, if the reasonable conduct of an activity results in damages
  • You also cannot say that a claimant has come to, or consented to, a nuisance. The courts see this as unfair (Sturges/Miller)
    • Coventry v Lawrence said that care and skill were only matters to be taken into account in assessing reasonableness as were the existence of planning permission, the character of an area, and the apparent consent of the claimant
      • The court said when an injunction is being sought, the fact that more than just the claimant being affected was also something to consider

Remedies for Private Nuisance
The main remedies for a private nuisance are:
  • Damages
  • Injunctions
    • Kennaway v Thompson (1980)
      • Issue was the noise of motorboats
      • Claimant sued for an injunction along with damages
      • The court decided that the claimant's rights could be adequately compensated for by damages rather than an injunction and felt that an injunction would be excessive on the facts and unfair to the defendant
      • On appeal the CoA said that damages and injunctions are not an either or option. If someone clearly requires both to have their rights protected, the courts should keep an open mind
      • On the facts, the breadth of the injunction was limited so as not to result in a total ban on power boat racing, but simply to reduce this activity
The Overlap Between Private Nuisance and Negligence
There is an overlap between nuisance and negligence:
  • In many cases claimants bring an action for both private nuisance and negligence
  • Both require injury or harm to the claimant
  • Both require foreseeability of the type of damage
They also have their differences:
  • A private nuisance does not need to involve a negligent act
  • The remedies for a private nuisance are usually damages and an injunction to stop the nuisance
  • The remedy for negligence is damages
Examination Tip
ALWAYS CHECK THE WORDING OF THE QUESTION
Many acts can involve possible liability in negligence, private nuisance, or trespass to land
You will gain few marks if the questions asks you to consider liability for private nuisance and you write an answer on negligence or trespass

Problems with Nuisance of an A03 Nature
  • This are of tort can be seen as unsatisfactory. The Hunter decision about the impairment of TV reception has been criticised considerably. Are the rights of wealthy developers being considered over smaller litigants in nuisance claims? Why should being able to watch TV be regarded as a luxury in such places rather than an essential feature of the enjoyment of the property?
  • There is some opinion that this case might not withstand the application of the Human Rights Act 1998
  • In terms of the HRA 1998, the courts will have to balance rights conferred under Article 8 (right to a home life) with wider policy issues and the protection of the rights of others
  • An activity such training jet fighter pilots can be seen as essential to the protection and economic wellbeing of the wider nation - the problem arises when you have to decide as a court whether damages alone will satisfy the breach of rights that such activities sometimes cause
  • In such situations, we can see that the public interest can so often trump private ones in the assessment of nuisance

Tuesday, 13 October 2020

Torts Connected to Land: Public Nuisance

 L.O:

  1. Define public nuisance
  2. Explain the main difference between public and private nuisance
  3. Explain the fault element for a public nuisance
  4. Explain a 'class of Her Majesty's subjects'
  5. Explain the main criticisms of public nuisance
  6. Explain suggestions for reform
  7. Explain the bringing of civil actions for public nuisance
  8. Identify relator actions for public nuisance
  9. Identify the specific defence to public nuisance
  10. Identify the main civil remedies to a public nuisance
Definition of a Public Nuisance
A public nuisance is a nuisance "which materially affects the reasonable comfort and convenience of a life of a class of Her Majesty's subjects"
  • Attorney General v PYA Quarries Ltd [1958]:
    • The defendants used a blasting system in their quarry which caused noise and vibrations, and threw out dust, stones and splinters affecting people living nearby. The Court of Appeal held that this could amount to a public nuisance, which included Romer LJ's definition, and which has been taken to include a whole range of activities which endanger the public, cause them inconvenience or discomfort, or prevent them exercising their rights
    • It was held that a substantial class of people must be affected by the nuisance
    • The dust affected 30 households
    • The closest the courts got to saying how many people constituted a class was when they said it would be more than two or three, but they said any more would be a question of fact in each case
    • An injunction was granted as the result of a 'relator action' to prevent the defendant from emitting quantities of stones, splinters, dust and vibrations from their quarry. A relator action is when an injunction is sought to stop a person committing a public nuisance. Relator actions are brought in the name of the Attorney General and are very rare today
  • Benjamin v Storr (1974)
    • A man who owned a coffee shop in Covent Garden in London had trade interrupted by tradesmen servicing the business opposite his shop blocking access and restricting light with his horses and carts
    • The claimant said that he was affected more than other people because the horses stank and scared away all of his customers, or at least enough to affect trade
    • It was held that the claimant must have suffered damage over and above the other members of the class
Activities amounting to a public nuisance were held to be:
  • Thomas v NUM (1985) - picketing on a road, preventing access
  • Rose v Miles (1815) - Blocking a canal
  • Lyons v Gulliver (1914) - Obstructing a highway by queueing on it
  • R v Johnson (1996) - making obscene phone calls to multiple women
  • Attorney General for Ontario v Orange Productions (1971) - a badly organised pop festival
R v Rimmington (2005):
  • The House of Lords tried to clarify when a group of individuals targeted by offensive behaviour could amount to being a class of people for the purposes of the Tort - it said that randomly selected members of ethnic minorities did not on the facts amount to a class of the public. It was decided that sending 538 pieces of offensive material did not affect enough of the public - to the extent that it could be called a 'common injury'
Tate and Lyle Food Distribution Ltd v The Greater London Council (1983)
  • The defendants were building a ferry terminal in the same part of the river Thames that the claimants had a jetty for the use of their business
  • The part of the Thames they were using became all silted up because of the works, requiring dredging to free it up. It also led to traffic being confined to a narrow channel of the river, causing traffic
  • Their claim in negligence and private nuisance failed since they did not possess any private rights which enabled them to insist on any particular depth of water
  • The claim succeeded in public nuisance since the interference caused by the ferry terminals affected public navigation rights

Archibold's Definition
"A person is guilty of a public nuisance (also known as common nuisance) who (a) does an act not warranted by law, or (b) omits to discharge a legal duty, if the effect of the act or omission is to endanger the life, health, property or comfort of the public, or to obstruct the public in the exercise or enjoyment of rights common to all Her Majesty's subjects"

Difference with a Private Nuisance
  • A public nuisance differs with a private nuisance on the basis of who is affected by the nuisance
  • A public nuisance affects a representative cross-section of a class of society in a neighbourhood
  • ALSO - the 5 rules in Rylands v Fletcher (1868)
    • The defendant must control the land from which the problem has come;
    • The defendant must have brought or accumulated something in the course of some "unnatural use" or the land;
    • The thing brought or accumulated must be "dangerous", i.e likely to cause damage if it escapes from the land;
    • There must be an escape of the dangerous thing;
    • There must be damage as a result of the escape;
Public Nuisance: A Crime
  • A public nuisance is a crime
Mode of Trial
Under the Magistrates Courts Act 1980, s17(1) and Sch.1, public nuisance is an offence which is triable either way. This means that it can be tried in either a magistrates' court or in the Crown Court

The Fault Element
  • There is no requirement of intention or recklessness in the offence of public nuisance; the fault element is one of foreseeability of the risk of the type of nuisance
  • The defendant is liable if they knew or ought to have known of the risk of the type or kind of nuisance that in fact occurred
  • This type of foreseeability was established in Wagon Mound (No.1) and reiterated in Cambridge Water Co v Eastern Counties Leather PLC (1994)
  • It is the same type of foreseeability in private nuisance
  • The term 'fault element' is sometimes referred to as mens rea in criminal law
What needs to be foreseeable?
  • The Court said that foreseeability of the type of damage suffered is a pre-requisite for establishing liability in public nuisance
  • When discussing foreseeability, it is important to mention the principle of remoteness
Foreseeability
R v Goldstein (2006):
  • The defendant had enclosed some salt in an envelope with a cheque. It was intended as a joke both because of the age of the debt and as a reference to a recent anthrax outbreak he and the recipient had discussed.
  • The salt leaked out of the envelope at the Post Office sorting office, creating an anthrax scare and subsequent evacuation
  • The House of Lords held that there was no public nuisance because it was not proved that the defendant knew or reasonably should have known that the salt would escape from the envelope and cause a nuisance. No Mens Rea.

Affecting a Representative Cross-Section of a Class of Society in a Neighbourhood
Romer, LJ stated:
"The sphere of the nuisance may be described generally as "the neighbourhood"; but the question whether the local community within that sphere comprises a sufficient number of persons to constitute a class of the public is a question of fact in every case. It is not necessary, in my judgment, to prove that every member of the class has been injuriously affected; it is sufficient to show that a representative cross-section of the class has been so affected..."

A Widespread and Indiscriminate Nuisance
Denning, LJ stated:
"I decline to answer the question how many people are necessary to make up Her Majesty's subjects generally. I prefer to look to the reason of the thing and to say that a public nuisance is a nuisance which is so widespread in its range or so indiscriminate in its effect that it would not be reasonable to expect one person to take proceedings on his own responsibility to put a stop to it, but that it should be taken on the responsibility of the community at large"

Class of People: Local Communities
  • R v Ruffell (1991)
    • The defendant had pleaded guilty to causing a public nuisance. The nuisance had consisted of an "acid house" party. A side road to the site had been blocked by traffic. There had been very loud music playing all night. The woodlands around the site had been littered with human excrement
    • The class of people affected by the nuisance were the local residents
    • The defendant unsuccessfully appealed to the Court of Appeal against the custodial sentence imposed in the Crown Court
Class of People: Group with a Common Interest
  • R v Ong (2001)
    • The defendant and others were planning to interfere with the floodlights in the course of the Premier Division match between Charlton Athletic and Liverpool football teams. They pleaded guilty to conspiracy to commit a public nuisance (and another offence)
    • The class of people that would gave been affected by the nuisance were the football spectators
    • The defendants unsuccessfully appealed to the Court of Appeal against the custodial sentences imposed in the Crown Court
Class of People: Impact on the Community
  • R v Lowrie (2004)
    • The defendant who had made a number of hoax calls to the emergency services pleaded guilty to causing a public nuisance. He appealed unsuccessfully to the Court of Appeal against the custodial sentence imposed
    • The class of people that would have been affected by the nuisance were those people who were in genuine need of help by the emergency services but could not get help because the emergency services had been diverted elsewhere by the hoax calls
Sending Abusive Letters
  • R v Rimmington (2006)
    • The House of Lords held that sending racially offensive materials to members of the public was not a public nuisance. Their reasoning was that sending individual letters to individual people did not constitute a nuisance affecting a class of people
    • The House of Lords also stated that common law offences such as public nuisance should not be used for conduct covered by a statutory offence unless there was a good reason. Rimmington could have been prosectured under the Malicious Communications Act 1988
Making Obscene Telephone Calls
  • R v Johnson (1997)
    • The Court of Appeal held that making obscene telephone calls to a number of women in a geographic area was a public nuisance. However, the House of Lords indicated in R v Rimmington (2006) that such behaviour is unlikely to amount to a public nuisance as they were separate calls made to separate people rather than a class of people
    • Making obscene telephone calls can now be prosecuted under statutory provisions such as the Communications Act 2003
Law Commission Report No.358
The Law Commission indicated in 2015 that:
  1. Prosecutions for public nuisance were still occurring despite the presence of relevant statutory provisions
  2. Some nuisance telephone call cases were still being prosecuted as a public nuisance
Both of the above indicate that limitations on prosecution imposed in Rimmington were not being 'reflected in practice'
  • The Law Commission said that if a person wants compensation, then Tort is the correct choice, but usually it would make more sense for a Criminal Prosecution to occur first before initiating the civil procedure of a Tort claim. Then, if one wants to pursue a claim in damages, it is usually pretty strong evidence of civil liability when there is a criminal conviction

Public Nuisance: Questions
What criticisms does the Law Commission make of the law on public nuisance?
How does the Law Commission suggest that the law on public nuisance could be reformed?

Civil Actions Against Public Nuisance
Civil actions can be brought against those committing a public nuisance in three ways. The remedies sought will be damages and a prohibitory injunction
  1. By a relator action. These are brought in the name of the Attorney General on behalf of a private citizen who has persuaded the Attorney General to agree to the action. Such actions are rare
  2. By a local authority under the Local Government Act 1972
  3. An action for tort by a private citizen who can show that he has suffered special damage beyond that experienced by the others of 'Her Majesty's subjects'
Relator Actions
Relator actions (legal actions brought by someone with a "right" in the land) for public nuisance are very rare. Possible reasons for this include:
  1. There are statutory bodies such as local authorities who will usually bring the actions
  2. The Attorney General is unlikely to agree to a relator action unless there is special damage and, if there is special damage, private citizens can bring actions in their own name without the permission of the Attorney General
  3. Most nuisance which affects the citizen can be prosecuted under statutory provisions rather than public nuisance
It is often the case that the Attorney General will receive no applications for a relation action in one particular year

Specific Remedy for Public Nuisance
In addition to the general defences to tort, statutory authority is the main specific defence to public nuisance. This means that the alleged nuisance is permitted by statute
Prescription cannot be used as a defence to a charge of public nuisance

Civil Remedies for Public Nuisance
The main civil remedies for public nuisance are damages and injunctions

In terms of Public Nuisance, how do you define interference?
  • It must be indirect, of a continuing nature (see PYA quarries) - it MUST interfere physically with a class of people's enjoyment of their property, and must not be a mere interference with a 'thing of delight' such as a view
  • Damage can also result from the defendant's part in the damage caused by a naturally occurring hazard e.g heavy rainfall. The defendant will be responsible if they fail to take reasonable precautions
  • All of this is subject to reasonableness - the abnormal sensitivity of the claimant and the locality must be taken into account
Whom do you sue?
  • The person creating the nuisance
  • The occupier of the land where it originated
  • The owner of the land if they knew about what was going on and failed to take reasonable steps to prevent it
Summary
Public nuisance is a crime as well as a tort; it must materially, which can mean physically, affect one's enjoyment of one's property, which can be by sound, smell, or physical damage, and must be of something more substantial than a 'delight' e.g a view

Defences
  • Normal Tort defences apply, but prescription does not. This is where an activity has been going on for years, apparently without complaint from anyone else. Why the potential claimants didnt complain is a factor in the likely success of a claim
  • BUT - it is never a defence to say that the claimant came to the nuisance and so apparently accepted its consequences

Wednesday, 7 October 2020

Occupiers' Liability: Persons other than visitors

  • Occupier's liability comes from both statute law and the common law
  • This area of tort involves the liability of an occupier to both visitors and persons other than visitors to his or her premises
Key Statutes
  • The Occupiers' Liability Act 1957 which covers visitors
  • The Occupiers' Liability Act 1984 which covers persons other than visitors (also referred to as an unlawful visitor or trespasser)
Occupier's Liability Act 1984

Who is an Occupier?
  • Anybody who would be classified as an occupier under the Occupiers Liability Act 1957 is an occupier under the Occupiers Liability Act 1984
Trespassers
Trespasser = someone who goes onto the land of an occupier without permission. Their presence is either unknown or objected to
  • The common law was very harsh towards trespassers, including children
  • In Addie v Dumbreck [1929] it was held that there was no duty of care owed by occupiers to trespassers to ensure that they were safe when coming onto the land. The only duty was not to inflict harm willfully
  • In British Railways Board v Herrington [1972], the House of Lords used their 1966 Practice Statement and departed from their precedent in Addie v Dumbreck [1929] and held that a duty of care could be owed to trespassers
  • The decision in this case eventually led to Parliament introducing the Occupiers Liability Act 1984
The Statutory Duty of Care
  • Under the Occupiers Liability Act 1984 s1 (3), an occupier of premises owes a statutory duty of care to an unlawful visitor if:
    • he is aware of the danger or has reasonable grounds to believe that it exists; and
    • (b) he knows or has reasonable grounds to believe that it exists; and
    • (c) the risk is one against which, in all the circumstances of the case, he may reasonably be expected to offer the other some protection
The Duty Owed
  • Under the Occupiers Liability Act 1984 s1 (4) the duty owed to persons other than visitors is to take care as is reasonable in all the circumstances of the case to see that they are not injured on the premises by the danger concerned
How does the duty imposed under the Occupiers Liability Act 1984 differ from that imposed under the Occupiers Liability Act 1957?
  • Occupiers Liability Act 1957:
    • To take such care is as reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there
  • Occupiers Liability Act 1984
    • To take care as is reasonable to see that the non-visitor is not injured on the premises by the danger concerned
Lord Hoffman: "Parliament has made it clear that in the case of a lawful visitor, one starts from the assumption that there is a duty whereas in the case of a trespasser one starts from the assumption that there is none"
Tomlinson v Congleton Borough Council [2003]
  • Tomlinson visited an artificial lake which was part of a country park in Congleton in Cheshire. Canoeing and windsurfing was permitted in one area of the lake and angling in another. Swimming and diving were not permitted.
  • Tomlinson ignored warning signs not to enter the lake ("Dangerous Water, No swimming.") and dived into it.
  • He hit his head on the bottom, causing him to break his neck which left him a tetraplegic. He brought proceedings against Congleton Borough Council claiming for loss of earnings, loss of quality of life and the cost of the care he would require as a result of his injuries
  • HELD - Tomlinson may have been a visitor when he arrived at the lake but it was accepted that he was a trespasser when he entered the water and any successful claims would have to be under the Occupiers Liability Act 1984
  • Tomlinson was aware that he was not permitted to dive in the lake. Although, the council were aware of the danger, they had introduced patrols and warning signs to stop swimming and diving
  • The House of Lords dismissed Tomlinson's claims

This means that under the Occupiers Liability Act 1957, a duty of care is owed to all visitors whereas under the Occupiers Liability Act 1984 a duty is owed only if certain conditions are met (e.g. the Occupier is aware of the danger, etc.)

Cases
  • Keown v Coventry Healthcare Trust (2006)
    • 11 year old child fell off a fire escape he had been climbing (from the underside) and suffered a fractured arm and brain injury
    • The fire escape was part of the hospital grounds and was a known area where children liked to play
    • The court held that there was no breach of duty under the 1984 Act, as it was the claimant's own choice to climb the fire escape
  • Siddorn v Patel
    • Claimant sought damages from her landlord for injuries sustained whilst dancing on a garage roof. She had climbed through a window to reach the roof, which was not a part of her tenancy, and fell through a Perspex skylight
    • The court rejected the claim. The duty of care under the 1984 Act could only arise if the danger referred to in s.1(1)(a) was due to the state of the premises and not a claimant's activity
  • Naylor v Payling (2004)
    • Payling suffered severe head injuries in the course of being ejected from a night club by a bouncer
    • The defendant owner was held to owe a duty to ensure the independent contractor who provided the security was insured, and so was in breach of his duty of care
  • Swain v Natui Ram Puri (1996)
    • 9 year old fell from a roof
    • There was extensive barbed wire blocking access to the roof, but the 9 year old found a gap
    • Occupier held not liable as there was no knowledge of vicinity under the 1984 Act
    • They didn't know the kid could've got up there as there was extensive fencing
  • Higgs v Foster (2004)
    • Police officer investigating a crime entered the occupier's premises to carry out surveillance
    • He fell into an uncovered pit suffering severe injuries, causing him to retire
    • The police officer was judged to be a trespasser
    • The occupier knew the uncovered hole was dangerous, but could not anticipate the police officer's presence
  • Rhind v Astbury Water Park (2004)
    • Claimant dived into water to fetch a football and hit his head on a submerged object
    • The occupier was not responsible because the claimant took an obvious and serious risk by diving in
    • The occupiers had no reasonable grounds to believe that the object was in the water
  • Scott v Associated British Ports (2000)
    • There were two incidents involving children
    • Because the first one did not have a precedent, the courts decided that the Defendants could not have foreseen the accident
    • In regard to the second one, the court found that on the evidence, even if the Defendant had put up a fence there would have been no way that this would have prevented the claimant from trespassing
  • Gould v McAuliffe (1951)
    • Claimant entered the back of the bar in search of the toilet and was attacked by a dog
    • Defense of restricted area was rejected as there was no sign or indication that visitors should not be there
  • Spearman v Royal United Bath Foundation NHS Trust (2017)
    • Claimant was a diabetic with a brain injury
    • He was admitted to hospital, but then wandered off through an unmarked fire exit and fell off the roof, badly injuring himself
    • Defendant held liable because of the absence of a sign denoting that the passage leading to the roof was out of bounds
    • The objective reasonable man test did not apply as the claimant was suffering from a confused state of mind
When will a duty of care to a trespasser exist?
1) When the risk of injury to the claimant is not obvious
2) When it is reasonable for the Defendant occupier to provide protection
3) When there is a history of trespass - such that the occupier is on reasonable notice that trespass will occur
4) When the occupier is reasonably expected to know of the existence of the risk

Ramblers
  • Ramblers using footpaths are also potentially covered by the 1984 Act
  • Occupiers are not responsible for hazards posed by natural features of the landscape. Only when the occupier has placed an obstacle on the land that ramblers have to negotiate will they be liable
  • Obstacles do not include stiles or gates unless the occupier has intentionally or recklessly created a danger
Following Herrington, the court said that the duty of humanity in that case was more generous than the duty owed to visitors under the 1957 Act, but in a case called White v St Albans City (1990) the court made it clear that the 1984 Act was to take precedence over Herrington and the "Humanity" test

White v St Albans City (1990)
  • A child took a shortcut across council land and fell into a trench. The land was deemed to be obviously private, because of fencing and signage. The child still got through and hurt himself
  • This is different to Herrington's Humanity Test because of the efforts made by the defendant to make clear that access would be trespass and by putting up the fence
  • On the facts, the defendant had acted reasonably - the child injured himself due to contributory negligence
Revil v Newbery (1996)
  • 76 year old man's shed on his allotment kept being broken into
  • Mr Newbery slept in his shed armed with a 12 bore shotgun
  • Mr Revil and his friend went to break into the shed. Newbery shot him through a hole in the door
  • HELD - the actions of the defendant were disproportionate and hence unreasonable
  • BUT - in coming onto the land as a trespasser, the claimant's damages were reduced by two thirds. The reasoning was that contributory negligence stands here because the accident would not have happened without a knowing trespass
  • It is not a defense to say that since the claimant was engaged in an illegal act (Ex Turpi Causa) that he had no course of action in civil law under the 1984 Act
Titchener v BRB
  • A young couple took a well used short cut through a fence and across a railway and were hit by a train.
  • HELD - they were aware of the dangers and still proceeded to take the risk (volenti non fit injuria) - claim failed
Defences
  • Volenti Non Fit Injuria - if someone willingly places themselves in a position where harm might result, knowing that some degree of harm might result, they are not able to bring a claim
  • Warning Signs - normally, so far as the 1984 Act is concerned, if the warning sign is sufficiently clear about the danger posed by the hazard, then this will offer a defence to the occupier. However, the existence of a warning sign will not in and of itself, be enough
  • Exclusion Clauses - The law is unclear here. In terms of a notice that tries to exclude liability under the 1984 Act for injury to trespassers, the 1984 Act does not specifically state whether this duty can be excluded by the occupier
  • The Unfair Contract Terms Act - only applies to the 1957 Act and case law - The 1977 Act's prohibition of excluding liability fore death/personal injury will only attach to the 1957 Act and the duty to visitors, and the law set out in cases dealing with the point
  • Under the 1984 Act, the effect of Herrington was to say that the law of common humanity cannot be excluded. There will always be a minimum standard of care. No case law has clarified the position with regard to exclusion clauses and the 1984 Act
Claiming for Damages under the 1957 and 1984 Acts
  • The 1984 Act only allowed claims for death or personal injury
  • Trespassers cannot claim for damage to property

Thursday, 1 October 2020

Occupier's Liability: Visitors

L.O:
  1. Name the two statutes covering occupier's liability
  2. Identify the difference in scope of the two statutes
  3. Describe who is an occupier
  4. Describe who is a visitor under the Occupier's Liability Act 1957
  5. Explain the common duty of care under the Occupier's Liability Act 1957
  6. Explain the meaning of the term 'reasonable'
  7. Explain the application of the common duty of care to children
A Tort Covered by Statute Law
  • The tort of negligence comes from the common law
  • However, occupier's liability comes from both statute law and the common law
  • This area of tort involves the liability of an occupier to both visitors and persons other than visitors to his or her premises
The Key Statutes
The two key statutes are:
  1. The Occupier's Liability Act 1957 which covers visitors
  2. The Occupier's Liability Act 1984 which covers persons other than visitors
Who is an Occupier?
  • The Occupier's Liability Act 1957 does not define who is the occupier, but it does state that the rules of common law shall apply
  • The test to be applied is occupational control (who has control over the premises)
  • In Wheat v Lacon & Co four categories of occupier were identified:
    1. If a landlord lets premises then the tenant will be the occupier
    2. If a landlord who lets part of a building retains certain areas (such as an entry hall) then the landlord will be the occupier in respect of those areas
    3. If an owner licenses a person to use premises but reserves the right of entry then the owner remains the occupier
    4. If contractors are employed to carry out work on premises, the owner will generally remain the occupier, although there may be circumstances where the contractor could be the occupier
Who is a visitor?
  • Under the common law, a visitor is a person who has express or implied permission to enter the premises
  • Under the Occupier's Liability Act 1957, persons who have a right to enter premises conferred by law (e.g fire fighters and police officers) are lawful visitors
The Common Duty of Care
  • The Occupier's Liability Act 1957 s2 imposes a common duty of care that is owed to lawful visitors
  • (1) An occupier of premises owes the same duty, the "common duty of care", to all his visitors, except in so far as he is free to and does extend, restrict, modify or exclude his duty to any visitor or visitors by agreement or otherwise
  • (2) The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there
  • The Occupier's Liability Act 1957 lays down guidelines in applying the common duty of care:
    • S2(3)(a) An occupier must be prepared for children to be less careful than adults
    • S2(3)(b) An occupier can expect a person in the exercise of his calling to appreciate and guard against any special risks ordinarily incident to it
    • S2(4)(a) A warning may discharge the duty of care
    • S2(4)(b) The occupier is not liable for the fault of an independent contractor provided he or she acted reasonably in entrusting the work to a contractor and took reasonable steps to ensure that the contractor was competent and the work was properly carried out
The Meaning of Reasonable

The Man on the Clapham Omnibus
  • Omnibus - a bus
  • The man on the Clapham omnibus is a hypothetical ordinary and reasonable person, used by the courts where it is necessary to decide whether a party has acted as a reasonable person would
Special Categories: Children
  • Children do not form a special category on their own, but the Occupiers Liability Act 1957 s2(3)(a) states that occupiers must be prepared for children to be less careful than adults
Cases
  • Haseldine v Daw [1941]
    • Claimant was injured by a faulty lift which had been surveyed by a group of technicians a week before the accident, and was seen to be in perfect order
    • The claimant purported to sue the owner of the building
    • The court held that the technical and specialist nature of lift maintenance meant that the quality of the survey was not something that the occupiers could reasonably be expected to verify. Hence the occupiers were not liable
      • Rule to exempt liability on the basis of contracting
        • The injury must have been caused by the work carried out by the contractor which they were contracted to do;
        • It was reasonable for the occupier to employ an independent contractor;
        • the occupier must be reasonably satisfied that the contractor was competent
  • Phipps v Rochester [1955]
    • 5 year old boy broke his leg after falling into a trench on a building site. The Council knew that children used the site, but didn't do much to stop them playing there
    • Held - the council had not broken its duty of care - the duty of parents to keep them away from such harm was greater than any owed by the council
    • However, it is possible that the defendants would not receive such leniency today, since there is clearly more of a duty to protect children
  • Wheat v Lacon & Co [1966]
    • A manager and his wife were licensed to run a pub on behalf of a brewery. They were allowed to take in paying guests; one of whom suffered a fatal fall down an unlit stairwell, where the handrail coincidentally didn't reach to the bottom of the stairs.
    • Key question as to who the occupier was, as it is usually looked at in terms of who had control
    • The HoL held that both the pub manager and the owning brewery had the characteristics of occupiers because they both had free access and control over parts of the premises
    • If there had been a breach of an occupier's duty of care, they would have shared liability for it, and consequently the duty to meet the claimant's damages and legal costs
    • As things stood however, a third party had removed a lightbulb from the premises, which the court regarded as an intervening act
    • The situation with the insufficiently long handrail was not addressed in terms of liability, but if that had been a Sine Qua Non, then liability for it as a contributing factor would have to have reflected the liability of each co-defendant settled by the court
    • The 1957 Act then appears to apply to claims arising from accidents caused by the presence of a physical hazard at the relevant location - this is as opposed to the action of a third party who is not the occupier
The 1957 Act defines a "premises" as follows: "land, buildings, or any fixed or movable structure, including a vessel, vehicle or aircraft"
The key issue in this area of tort is the reasonableness of the duty of care. What, then, is reasonable? Courts have taken into account all of the circumstances of the case
The duty does not require the occupier to make a visitor absolutely safe, just to take reasonable steps that no harm comes to them
  • Glasgow Corporation v Taylor [1992]
    • Boy, aged 5, died after eating poisonous berries from a tree
    • The Council had not put either a fence around a tree nor a sign indicating the danger, but had known that the tree was there, and poisonous
    • Held - breach of duty, but it could have been a different outcome if the victim had been an adult
If a landlord has a clause in a lease that reserves their right to enter at will, then they will remain the occupier of the entire building
  • Ward v The Ritz Hotel (1992)
    • The claimant was injured when he fell over the rail on a hotel room balcony that was too low according to the British Safety Standards
    • In terms of what is reasonable, the court said that it is always useful for a defendant to show that they have met the required safety standards, although it is not a complete defense
    • Claim was successful
    • Case law also suggests that a warning sign e.g warning of a slippery floor, may go some way to absolving the defendant of liability - but it obviously depends on the sign and the hazard
  • Horton v Jackson (1996)
    • A claimant lost an eye at a golf club driving range after being struck by a golf ball
    • The defendant argued that there was a sign asking people to wait until golfers on the adjoining tee had taken their shots and it did not matter that this rule of etiquette was not enforced. Also relevant was that accidents at the club resulting in injury had been very scarce - 2 in 800,000 rounds of golf
    • The claim failed
  • Darby v National Trust
    • Death by drowning at a National Trust property. No sign
    • Widow of victim sued saying that there was no sign highlighting the risk of drowning
    • CoA held - there didn't need to be one as the risk of drowning in a deep pond was obvious
  • Clare v Perry (2005)
    • Claimant injured by climbing over a wall outside a hotel which led to a dangerous drop. She had chosen not to take the proper exit. Her argument was that there was no fencing preventing her from taking this route
    • Held - the defendant's duty as an occupier to take reasonable care did not extend to protecting guests from their own foolish behaviour
  • Perry v Butlins (1997)
    • A three year old boy fell onto a low wall with hard and sharp angles. The wall had been situated very close to an area where children of that age were routinely entertained
    • Held - CoA said the case was borderline, but on the facts, the sharpness of the wall, with its location near a children's entertainment area swung the balance towards a breach of a duty of care
  • Jolley v Sutton LBC (2000)
    • Children tried to mend a boat that had been dumped on council land, which resulted in one being injured and paralysed 
    • Held - children could be relied upon to find ingenious ways of hurting themselves, and it was reasonably foreseeable sometimes that this would happen. The Council was therefore liable for a breach in their duty for not removing the boat at the earliest opportunity
  • Bourne Leisure v Marsden (2009)
    • Two year old boy drowned after wandering away from his mother in one of two ponds in a caravan park
    • The defendants had said that they made it clear to customers that these things were on site and posed a hazard to young children
Section 2(3) of the 1957 Act says: A person exercising their calling may be deemed to exercise caution against any risks normally associated with it. Where such risks normally arise in the course of a person's work, the occupier doesn't need to take precautions
  • Roles v Nathan (1963)
    • Two chimney sweeps died after ignoring ample warnings of carbon monoxide emissions and were found dead after returning in the evening to clean flues that they were told to stay away from until the next day
    • Their widows brought action under Occupiers Liability Act 1957
    • Held - not liable - they were warned SO MANY TIMES
  • Ogwo v Taylor (1988)
    • Defendant negligently set fire to his own home after botched DIY
    • The resulting fire injured the fireman claimant who attended the scene
    • Could this be regarded simply as something the claimant had to face as a risk because of his job?
    • Held - No - The risk of possible injury was foreseeable, but not necessarily inevitable, and the defendant's actions had placed the fireman in in that position
The courts are not keen to lay down a hard and fast rule in regard to the duty of care owed to people in lines of work that expose to risk. The fire in the Ogwo case was caused negligently. The degree of risk for  judges has to be subjectively looked at in each case
Section 2(4)b - An occupier is not liable for the negligence of the contractor that he appointed, if in choosing him he exercised all reasonable care
  • Woodward v The Mayor of Hastings (1945)
    • Held that the failure of the occupiers to put in place someone to check the work of the cleaner made them liable
    • No technical expertise was needed here to see whether a step had been cleared of snow
  • Bottomley v Todmorden Cricket Club (2003)
    • Claimant was a volunteer 'helping out' at a fireworks display, and was injured
    • Held - The Cricket Club were liable for not hiring someone competent enough to do the job, and for failing to check that they had insurance that covered the display
  • Gwilliam v West Hertfordshire Hospital NHS Trust (2002)
    • Injuries suffered by claimant on a 'splat wall' organised by a sub-contractor
    • Held - The sub-contractor was not competent to put on this activity and had no insurance
    • The hospital owed a duty of care, but there was no breach of duty as they had enquired and been told by the sub-contractor that they did have insurance (when they didn't)
Recap on independent contractors
  • Section 2(4)(b) of the 1957 Act said that the occupier has to take reasonable steps to satisfy themselves that the contractor is reasonably competent to carry out the work that they have been contracted to complete
  • On the issue of an occupier's duty to check the contractor's competence and insurance. The case of Naylor v Payling (2004) said that Gwilliam could be distinguished on its facts because the splat wall activity in that case was a one-off event, and the defendants had made adequate inquiries as to competence and insurance in any case
  • In Naylor the situation was a little different in that the contractor was in the business of supplying door staff to pubs like this. The bouncers supplied by the contractor had been subjected to regular checks and training by the local police and the council, and a compulsory part of the job was to undergo these checks
  • The nightclub was then entitled to assume that the bouncers provided were of good character and had been vetted and appropriately trained. Most importantly however, the court said that there wasn't a general duty on the part of the occupiers to check for insurance
  • Where a contractor enters premises under the terms of a contract -which could be a building job or other, then section 5(1) of the 1957 Act states that the duty of care that they are owed is exactly the same as that of a visitor - unless a higher standard has been agreed contractually
Defenses Under the 1957 Act
  • First defense is that the claimant was contributorily negligent - the defendant can allege this if the claimant's behaviour was less than reasonable. Clare v Perry (2005) is an example of this
  • Another defense is "Volenti Non fit Injuria" - the claimant has accepted a risk of injury by voluntarily taking part in a risky activity. The defendant must show that the risk was obvious from the outset and that the injury/damage suffered by the claimant was foreseeable and not made worse in any way by the acts or omission of the defendant
  • The law says that there is a legitimate expectation on the part of defendant: for the claimant to act 'reasonably' in the accepted common law sense of the term
  • Warnings: The visitor has to have been given sufficient warning of a hazard in order to have the defense that they did all they could to avoid the accident
  • This is a less predictable danger than the one in cases involving drowning such as Darby v the National Trust 
  • The example given in Roles v Nathan (1963) - the chimney sweep case - was if a defendant had pointed out the safest course of action to a visitor, then they have given an effective warning. If the visitor has no choice but to take a risk, and the defendant merely points out this unavoidable risk, then that is not a sufficiently effective warning
More Cases
  • Rae v Mars (1990)
    • An experienced surveyor sustained injury falling down a 3 foot drop on entering an unlit storeroom at the defendant's factory. The defendants were liable under the Occupier's Liability Act 1957 5.2 because the claimant had not been given a specific warning of the immediacy of the danger, but the claimant was contributorily negligent by one third because he had neither switched on his torch nor cast his eye to the ground
  • Staples v West Dorset (1995)
    • This involved a slip by the claimant, whilst taking a photo, on green algae on a quayside wall that had been made famous as the location for a film
    • The quayside was a tourist attraction in Lyme Regis (a town that survives on tourism) that people were encouraged to visit. The court said that the risk of slipping was so obvious that no warning sign was necessary
    • Issue - if the risk of danger is so obvious in a location that people are encouraged to visit, should the notion of reasonableness extend to the council putting up a barrier or a fence?
    • The court said that the whole point of the quayside in question was that it did not have a barrier which would have detracted from its status as a tourist attraction
  • English Heritage v Taylor (2016)
    • A tourist attraction (castle) had a narrow path above a dry moat which was a 12 foot drop on the other side
    • The claimant lost their footing on the path and fell into the moat. The defense was that the risk of harm was obvious, but the CoA said it wasn't, at least not enough to be a defense
    • On the facts, as a minimum, there should have been a warning sign in place
1977 Unfair Contract Terms Act
  • Valid exclusion clauses in notices - 20 years before the 1977 Unfair Contract Terms Act, prohibiting any valid exclusion for liability for death or personal injury
  • Following the Unfair Contract Terms Act 1997 - an exclusion clause trying to absolve a defendant's liability for death or personal injury will only operate successfully so long as it is reasonable to do so. This will depend on whether the claimant has actually accepted a degree of risk, and the extent to which they are equipped to avoid it, in terms of expertise or protective equipment
  • BUT - If the visitor has not entered a contract with such a clause in it, then the duty of care expected is the common law, or reasonable one
  • UCTA does not apply where visitors have entered premises for leisure, business, or educational purposes
  • So - a church hall hired out to a badminton club could avoid liability for injuries, but a leisure centre (specifically designed to host such activities), could not
  • Section 2 of the 1957 Act says that someone in the position of the claimant visitor MUST have specifically accepted the risk as a part of the contract of hire
  • The Act states that the defendant cannot simply avoid liability just by displaying a notice that it doesn't accept liability for any injuries
  • 2015 Consumer Rights Act states that in a consumer contract, you cannot exclude liability for death or personal injury in any event
  • Remember, a consumer contract is one where one side is not an expert, is buying a good, or a service, and there is an inequality of bargaining power on the basis. It would be slightly different in a business - to - business contract because the expertise and risk acknowledgment would be greater
  • The 1957 Act days that consequential damages will be recoverable, but not for pure economic loss
  • HOWEVER - Caparo shows that pure economic loss is recoverable where it is foreseeable and reasonable to do so, if there is reliance, proximity, and the remoteness rules have been satisfied
  • Caparo was dealing with information, but the principle of recovery of pure economic loss will apply in injury scenarios