Extracts from this document...

Introduction

TORT ESSAY - NUISANCE AND NEGLIGENCE A number of aspects of liability rise from this case study and each one will be discussed. With regards to the headaches suffered by Karl, it is necessary to look at private nuisance. Negligence is disregarded as it is assumed from the details in the case study that the headaches suffered are not so serious as to cause personal injury, it is just described as 'mere discomfort'. Such a claim under the law of nuisance requires three factors to be fulfilled. The first being a continuous interference. This is shown in De Keyser's Royal Hotel v Spicer Bros Ltd (1914) 30 TLR 257. From the case study one can assume that it is a continuing interfering act and not a one off. Secondly, the interference must be unlawful or unreasonable. This is up to the claimant to prove. The rule for this is sic utere tuo ut alienum non laedas (So use your own property as not to injure your neighbour's). The locality in this instance reflects the unreasonableness of Jane's actions. It occurred in a residential area and therefore such Gases were not to be expected. The duration of the act will also be taken into account. ...read more.

Middle

Bridgman (1879) 11 Ch D 852. However, much more detail would be needed to establish this. The fact Jane claims her invention may save the western world is not a defence to private nuisance but may be argued in her defence. Because Jane is only a tenant, Ingrid the landlord may also be liable. A landlord may be liable for nuisances emanating from land, e.g. if the landlord had knowledge of the nuisance before letting, or where the landlord reserved the right to enter and repair the premises. For example, Tetley v Chitty [1986] 1 All ER 663 - council granted permission for a go-kart track on council owned land. Council liable in nuisance for noise. The fact that the partition wall had cracks in that allowed the fumes to come through may also render Ingrid liable. It says they were like that even before she acquired the property however it does not state if she had knowledge of them. If she did she may be liable under negligent failure to repair however more facts are needed for this. Obviously, Karl's breaking and entering into Jane's flat and theft of the petrol substitute is unlawful however this is an area of criminal law and not tortious liability, therefore the next area to be discussed is Lucy and Karl's liability for the destroyed vegetation in the gardens adjoining Lucy. ...read more.

Conclusion

If he did this would greatly strengthen Oliver's position as Max may be liable under negligence. Also, the fact that a 2 month period passes between the vapors penetrating the branch and it falling onto the highway may be important. This brings in the test of reasonableness from Caparo Industries v Dickman [1990] 1 All ER 568, HL and asks the question if it was reasonable for Max to check his tree as his duty of care to the users of the highway of which the branch overhung. An occupier's control of land may give rise to an affirmative duty in relation to the behavior of visitors or even acts of nature. Where the defendant has control over some object which is likely to be particularly dangerous if interfered with by a third party he may be under a duty to prevent such an interference (Dominion Natural Gas v Collins and Perkins [1909] AC 640). This has been applied to the theft of a poisonous chemical by young children (Holian v United Grain Growers (1980) 112 DLR (3d) 611). In conclusion, on the facts presented it is unclear if Oliver could be successful with a claim over Max for the damage of his car. More detail would be required however on the assumption no extra checks were carried out and the finding in Holian v United Grain GrowersI think a claim for damages will succeed. ?? ?? ?? ?? ...read more.

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