The court held that the claimant’s injury was due to her activity on the premises;
there was no evidence that the skylight was in a state of disrepair.
As the tenant had never received permission to go onto the roof for any purpose, the
premises themselves did not give rise to any danger within the meaning of s.(1)(1)(a).
(4)(1972) AC 877
(5)(1929) AC 358
(6) S.1(1) of the 1957 Act
(7) S.1(1)a of the 1984 Act
(8) (2007) All ER (D) 453
Similarly, and demonstrating that, even though an occupier must be prepared for children
to be less careful, the Courts are reluctant to impose a duty where the
claimant’s own activity upon the premises causes injury, in David Lewis v
National Assembly of Wales (9), the claimant, aged 14 rode, his bike on the
defendant’s land which comprised a disused single carriageway, a metre high
embankment and a wide ditch. The boy hit the embankment and was rendered
paraplegic.
It was argued that the land was inherently dangerous by its configuration, an
allurement to children tantamount to a trap and the risk posed was due to the state of the
premises. It was held that there was nothing inherently dangerous about the land, no
hidden danger or risk of suffering injury by reason of danger due to the state of the
premises. The only danger arose from the activity of the claimant.
Assuming that a duty is owed under either Act because of the state of the premises, the
extent of the duty varies between the two. The 1957 Act requires the occupier:
"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" (10).
(9) (2008) LTL 30/01/08
(10) s.2(2) OLA 1957
Section 2(3) allows for "the degree of care, and of want of care, which would ordinarily
be looked for in such a visitor" and that an occupier must be prepared for children to be
less careful than adults (11).
Far from a starting position that there is no duty owed to trespassers, the 1984 Act has a similar framework structuring the extent of the duty owed. S.1(3) provides that the risk of injury arising from the known danger must be one against which, in all the circumstances, it is reasonable to expect the occupier "to offer ….some protection". So the occupier is charged with taking such care as is "reasonable in all the circumstances" (3.4).
S.3(5) specifically allows for the duty to be discharged by the use of warnings and discouragements against incurring the relevant risk although the wording of s.2(4)a OLA 1957, that a warning may be given but must be sufficient to enable a visitor to be reasonably safe requires that the warning must do more than simply be advisory of any risk which may be sufficient under the 1984 Act.
Free will is a concept considered in Tomlinson and is actively encouraged by Lord Hobhouse in his observations:
“it….should never be the policy of the law to require the protection of the foolhardy or reckless few to deprive, or interfere with, the enjoyment by the remainder of society of the liberties and amenities to which they are rightly entitled.”
So, in line with the 1957 Act (12), the 1984 Act (13) extends no duty to cover risks willingly accepted by the person reflecting the principle of volenti non fit injuria.
(11) s.2(3)(a) OLA 1957
(12) s.2(5) OLA 1957
(13) S.3(6) OLA 1984
In Tomlinson, the Lords found there was no difference in principle to one who trespasses at the outset and one who does something which he has not been given permission to do, having initially entered the premises as a visitor. This interesting potential alignment of an entrant’s status demonstrates why, in many ways, the duty owed must be approached carefully as the status of a visitor may alter within the course of a visit and emphasises yet again that, frequently, it is the claimant’s own conduct on the premises which causes the mischief. In the earlier case of Donoghue v Folkestone Properties Ltd (14), the claimant was rendered tetraplegic having dived off a harbour wall despite the presence of warning notices. The 1984 Act was applicable. The claim failed as, although a warning was not prominently displayed where the claimant chose to dive, the test as to requisite knowledge was to be determined as at the time of the incident, so no duty was owed in the middle of winter and the middle of the night.
In Tomlinson, in which the case of Donoghue was repeatedly referenced, Lord Hoffman suggested that it would be extremely rare for an occupier of land to be under a duty to prevent people from taking risks which are inherent in the activities they freely choose to undertake upon the land (15). This seems to have driven decisions in subsequent cases: in Bourne Leisure Ltd v Marsden (16), the defendant camp-site owner was held not liable for a toddler’s death who strayed from her parents and drowned in a scenic pond. The child was a visitor to the site and clear warnings had been given as to the pond’s presence and safe pathways were clearly marked on a site-plan.
So returning to the question, it would be wrong to assume that no duty is owed to a trespasser. 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:
- Her sleep is being disturbed by the noise from Daniel’s pile driving operations, which are often carried on late into the night.
- 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.
- 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)
The tort of private nuisance flows from:
“an act or omission whereby a person is annoyed or disturbed in the enjoyment of land whether by physical damage or by interference with their ownership, occupation and enjoyment of land”. (1)
-
R F V Heuston and R A Buckley, Salmond and Heuston on the Law of Torts , Sweet & Maxwell; 21st Revised edition 1996
The defining feature is that the use and enjoyment of the land has been interfered with and it is closely linked to the law of property. Its basis is longstanding as a principle of law: “ a man must not make such use of his property as unreasonably and unnecessarily to cause inconvenient to his neighbour” Aldred’s case (2).
However, this is not strictly true as a balance must be struck by the entitlement for everyone to use and enjoy their own land so that, if use is ordinary and reasonable, there should be no liability upon the defendant. In the case at hand, Daniels has embarked upon activity on his land, which is of some duration, which may be said to border upon non-ordinary and unreasonable.
The nuisance must be a continuing wrong and not a single incident. However, even intermittent noises or incidents may be actionable Rapier v London Tramways Co (3). On the facts, the pile driving operations are continuing throughout the day and into the night and may continue for six weeks. In De Keyser's Royal Hotel v Spicer Bros Ltd (4), noisy pile driving at night during temporary building works was held to be a private nuisance which appears to be on a par with the facts of this case.
Although there is no suggestion of physical damage to Clare’s property, her enjoyment of her own property has been impaired and, through disturbed sleep, she is suffering personal discomfort, sufficient to warrant action being taken: Shelfer v City of London Electric Lighting Co (5) and Metroplitan Properties Ltd v Jones (6) (The overall environment will be taken into account. In Sturges v Bridgman (it was said that: "What would be a nuisance in Belgravia Square would not necessarily be so in Bermondsey." (7).
(2) (1610) Co Rep 57
(3) (1893) 2 Ch 588
(4) (1914) 30 TLR 257
(5) (1895) 1 CH 287
(6) (1939) 2 All ER 202.
(7) (1879) 11 Ch D 852
Clare lives in a residential area by a railway line but clearly has rural views. There is no suggestion that the area is so noisy that the contributory effect of Daniel’s activities is thus minimised. These are all relevant considerations. In St Helen’s Smelting Company v Tipping(8) it was said that whether the activities constitutes a nuisance depended greatly upon the circumstances of the place and so the locality is important. The standard is that of the “ordinary reasonable and responsible person” living in that particular area Halsey v Esso Petroleum Co (9).
Unless Clare is being unusually sensitive about sleep deprivation then she should succeed - McKinnon Industries v Walker (10).
However, consideration will be given as to the reasonableness of Daniel’s conduct given the need for the works to be done to provide a secure foundation for the construction.
In Harrison v Southwark Water Co (11), building work carried out at reasonable times of the day did not amount to a nuisance and it is likely that, if the works, could be confined to reasonable daylight hours that the works would be permitted to proceed.
Clare should be advised to issue proceedings requesting an injunction. In order to establish an entitlement to a remedy Clare must show that she has a legal interest in land which has been affected and is its legal owner and not, say, its tenant. Newcastle-under-Lyme Corporation v Wolstanton Limited (12). If Clare was the wife of the homeowner would be able to sue as she has a beneficial interest in the matrimonial home per Lord Hoffman in Hunter v Canary Wharf Ltd (13).
(8) (1865) 11 H.L.C. 642
(9) (1961) 2 All ER 145
(10) (1951) 3 DLR 577
(11) (1891) 2 Ch D 409
(12) (1947) 1 Ch. 92, 107
(13) (1997) 2 All ER 426
An injunction is the most appropriate remedy for a nuisance because it prevents the continuance of the nuisance and, therefore, is most effective. Damages may be awarded in place of an injunction. Again, a balance needs to be struck between the need for Daniel to complete the works to be done and to compensate Clare for the loss of amenity which she has suffered in the loss of enjoyment of her land. Damages for loss of amenity value cannot be assessed precisely and will depend upon how much Clare was affected .
It may at first be appropriate for Clare to request Daniel to abate the nuisance. Her main objection appears to be sleepless nights and so a reasonable request might be for Daniel to consider limiting his activities to the daytime and only then to seek legal redress if Daniel is unreasonable.
(ii) In respect of the encroachment onto the land by the boom of the crane, this is an issue which can be addressed in both trespass and nuisance. Clare’s ownership of her land entitles her also to claim ownership of the airspace above it and therefore just as Daniel would commit an actionable trespass by entering uninvited upon Clare’s land, so too, the entry of the crane boom into her airspace is actionable. In Laiqat v Majid (15), Silber LJ said that:
“ if a defendant interferes with a claimant's airspace, this amounts to trespass except that this conduct would not constitute trespass if the interference were at such great height - such as by high flying aircraft- that it does not interfere with the claimant's airspace “.
Following the wording of Griffiths J in Bernstein v Skyviews General Ltd:
"if somebody erects on his own land a structure, part of which invades the air space above the land of another, the invasion is trespass" (16).
(15) (2005) EWHC 1305 QB
(16) (1978) QB 479
So, no matter how minimal the trespass committed, it will be actionable: "adjoining owners … have no right to erect structures overhanging or passing over their neighbour's land" (17).
An injunction is the appropriate remedy to seek to prevent the continuance of the trespass as above.
(iii)
In Hunter v Canary Wharf Ltd, Lord Hoffman stated the law as follows:
“The general principle is that at common law anyone may build whatever he likes upon his land. If the effect is to interfere with the light, air or view of his neighbour, that is his misfortune. The owner's right to build can be restrained only by covenant or the acquisition (by grant or prescription) of an easement of light or air for the benefit of windows or apertures on adjoining land A right to an uninterrupted prospect cannot be acquired even by prescription” (18).
Although an annoyance to Clare that her view should be restricted, the law does not provide a remedy for every annoyance, however great.
In Hunter, Lord Lloyd said:
“The house-owner who has a fine view of the South Downs may find that his neighbour has built so as to obscure his view. But there is no redress, unless, perchance, the neighbour's land was subject to a restrictive covenant in the house-owner's favour.”
(17) [1997] 2 All ER 426
(18) [1997] 2 All ER 426
The principle of "damnum absque injuria" was cited: a loss which a person has suffered but which gives rise to no infringement of any legal right.
Although Hunter concerned reception of a TV signal, it was confirmed that, in the absence of a restrictive covenant applying to the land, there is no legal right to a view and a specific analogy was drawn between a building which interferes with a view and a building which interferes with television reception.
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.
Word count 1518
Bibliography for Question 1 (a) and (b)
Sir John Salmond, Salmond's Law Of Torts. A Treatise On The English Law Of Liability For Civil Injuries, Sweet & Maxwell 1936
R F V Heuston and R A Buckley, Salmond and Heuston on the Law of Torts , Sweet & Maxwell; 21st Revised edition 1996
M Lunney and K Oliphant, Tort Law: Text and Materials OUP Oxford 3rd edition 2007
C Mitchell and P Mitchell, Landmark Cases in the Law of Tort, Hart Publishing 2010
R Stevens, Torts and Rights, OUP Oxford 2007
M Matthews, C O’Cinneide, J Morgan, Hepple & Matthews' Tort: Cases and Materials (Cases & Materials), OUP Oxford; 6th edition 2008
E Martin and J Law, 7th edition A Dictionary of Law, OUP 2009
Occupiers Liability Act 1957
Occupiers Liability Act 1984
Case law as referenced
![For liability to be established one of the principle elements is that of whether a duty of care was owed by the defendant to the claimant, such as in the case of Donoghue v Stevenson [1932] A.C. 562.](https://mbt-essays-prod-public.s3.eu-west-1.amazonaws.com/93070/listing/93070_1.jpg)