• Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month
Page
  1. 1
    1
  2. 2
    2
  3. 3
    3
  4. 4
    4
  5. 5
    5
  6. 6
    6
  7. 7
    7
  8. 8
    8
  9. 9
    9
  10. 10
    10
  11. 11
    11
  12. 12
    12
  13. 13
    13
  14. 14
    14
  15. 15
    15

But 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.Discuss the above statement with

Extracts from this document...

Introduction

Question 1 Please note you must answer both parts of this question. v a. "But 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." Per Lord Hoffman in Tomlinson v Congleton Borough Council [2004] 1 AC 46. Discuss the above statement with reference to the Occupiers Liability Acts 1957 and 1984, critically evaluating the potential liability of an occupier under both Acts. (Word limit 1500 words) AND b. Clare is the owner-occupier of Red Cottage, which is situated in a mainly residential district, close to a major railway line. Daniel, the owner of adjoining land, is carrying out construction works on his land and, for this purpose, has recently placed a tower crane on his land. Daniel's ground is unstable and he needs to drive piles into the ground in order to provide a secure foundation for his new building. Daniel expects to complete these pile driving operations in six weeks' time. Clare complains of the following: i) Her sleep is being disturbed by the noise from Daniel's pile driving operations, which are often carried on late into the night. ii) The boom of Daniel's tower crane regularly invades the airspace above the garden of Red Cottage. Whilst this does not cause or threaten any interference with Clare's enjoyment of her property, she is not prepared to put up with what she considers to be an invasion of her rights as landowner. iii) When completed, Daniel's new building will obstruct the beautiful view from Red Cottage over the nearby Clettan hills. Advise Clare as to her rights and remedies (if any) in tort in respect of each of her above complaints. (Word limit 1500 words) Question 1a The judgment in Tomlinson v Congleton Borough Council (1) ...read more.

Middle

If the state of the premises is such that I may reasonably expect that the occupier should take reasonable steps to protect me from the known hazard, then a duty is owed. If I am a visitor, how in fundamental terms does that duty differ? (14) (2003) EWCA civ 231, (15) at para 45 (16)(2009) EWCA civ 671 The wording of both Acts, as noted, is couched in terms of reasonableness and so the occupier must at a minimum take reasonable steps to secure my safety if a hazard exists. However, in neither situation am I guaranteed of safety and that is emphasised by the Court's approach: "The pursuit of an unrestrained culture of blame and compensation has many evil consequences and one is certainly the interference with the liberty of the citizen" (17) That may be overlooked in our risk-averse litigation culture, which is so often criticised, but the present trend in cases highlight not so much concern over an increase in occupiers' culpable breaches of duty, but more the culpability of the claimant, in whatever capacity, by their actions upon the premises. (17) Lord Hoffman in Tomlinson at para 81 Word Count 1511 Question 1(b) follows below Question 1b Clare is the owner-occupier of Red Cottage, which is situated in a mainly residential district, close to a major railway line. Daniel, the owner of adjoining land, is carrying out construction works on his land and, for this purpose, has recently placed a tower crane on his land. Daniel's ground is unstable and he needs to drive piles into the ground in order to provide a secure foundation for his new building. Daniel expects to complete these pile driving operations in six weeks' time. Clare complains of the following: (i) Her sleep is being disturbed by the noise from Daniel's pile driving operations, which are often carried on late into the night. (ii) ...read more.

Conclusion

This is a principle of long-standing. In Attorney-General v. Doughty Lord Hardwicke LC said: "I know no general rule of common law, which warrants that, or says, that building so as to stop another's prospect is a nuisance. Was that the case, there could be no great towns; and I must grant injunctions to all the new buildings in this town . . ." (19). Even if Clare could show that she had lived at the property for many years, no right is acquired by prescription. In Dalton v. Angus, Lord Blackburn said: " it was held expedient that the right of prospect, which would impose a burthen on a very large and indefinite area, should not be allowed to be created, except by actual agreement." (20). Therefore, that Clare's view of the hills will be interrupted on completion of Daniel's works is not actionable unless the claim is within the facts of the recent case of Dennis v Davies(21), in which neighbours relied on a restrictive covenant affecting the house not to cause "nuisance or annoyance". (19) (1752) 2 Ves. Sen. 453 (20) (1881) 6 App.Cas. 740 at 824 (21) (2009) EWCA Civ 1081 The High Court held that, whilst the obstruction of the view would not amount to a legal nuisance, it could amount to an "annoyance", the test for which whether "reasonable people, having regard to the ordinary use of a house for pleasurable enjoyment, would be annoyed or aggrieved" to be judged by "robust and common sense standards". On the facts of that case, the obstruction of the view did amount to an "annoyance" and the extension could therefore be prevented. Daniel may have to observe such a covenant. This should be checked with the Land Registry. The covenant would not infringe Daniels' entitlement to build but prevent him causing an annoyance. Further information would need to be obtained before being able to advise Clare conclusively with regard to any remedy. ...read more.

The above preview is unformatted text

This student written piece of work is one of many that can be found in our University Degree Tort Law section.

Found what you're looking for?

  • Start learning 29% faster today
  • 150,000+ documents available
  • Just £6.99 a month

Not the one? Search for your essay title...
  • Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

See related essaysSee related essays

Related University Degree Tort Law essays

  1. Marked by a teacher

    'The existence of a duty of care is ultimately a question of policy'. Discuss.

    4 star(s)

    negligent in failing to take adequate steps to ensure that the teacher did not harm them and in not arresting him earlier than was attempted. An application by the Metropolitan Police to strike out the claim as disclosing no cause of action was successful before the Court of Appeal, the

  2. Marked by a teacher

    Problem question on Occupiers liability Act 1957

    3 star(s)

    Nevertheless, Ingrid is aware of the fact that Jane is an amateur inventor and it is therefore reasonably foreseeable that an amateur inventor using petrol substitutes may cause a nuisance to neighbours. Jane Before establishing the liability of Jane it is essential to determine whether her actions are an ongoing

  1. Consider the relationship between the torts of private nuisance and negligence and in doing ...

    But even if that were technically wrong I do not think that the point could or should avail the defendants in this case.'18 He argues that the terminology used by Megaw in this case is one of negligence not of nuisance therefore it has resulted in the 'further weakening of

  2. It is clear that psychiatric injury presents the law with the most profound problems ...

    Mantell J ignored the event proximity test arguing that it would be applying an arbitrary rule peculiar to cases of nervous shock. The decision had been overruled by the House of Lords in Alcock where it was said that identification of bodies in the mortuary did not satisfy the event proximity rule.

  1. Remoteness of damage is an interesting principle especially when analyzing two specific cases. They ...

    According to Oxford Dictionary of law20 under this rule, the claimant will be able to recover losses arising naturally, according to the usual course of things. This is the first limb of a test and second limb is slightly different.

  2. In the generality of personal injury actions, it is of course true that ...

    single fibre could be the solitary cause, nonetheless, it appears to be difficult in determining which factory should be blamed on that 'single' fibre. It was held that, one increased the risk and another contributed subsequently the court has found in favour of Mr.

  1. How do the Courts in England and Wales decide when a duty is owed ...

    It was not until the following century and the landmark case of Donoghue v Stevenson8, where the claimant consumed part of a bottle of ginger beer, bought by a third party and suffered injury when a decomposed snail was found in the remainder, that these principles were developed into a relatively coherent concept.

  2. Free essay

    Case Note - Hunter Area Health v Preston

    By the defendants releasing the plaintiff he was in an environment where he could - 5 - harm others .

  • Over 160,000 pieces
    of student written work
  • Annotated by
    experienced teachers
  • Ideas and feedback to
    improve your own work