There must, however, be a diminution in the value of the property. An example is in St. Helen’s Smelting Co.. -v- Tipping (1865), where the claimant's garden shrubs were damaged by fumes from the defendant's copper-smelting plant resulting in considerable diminution in the value of the property. And also illustrated in Spicer -v- Smee (1946), the court remarked that “Private nuisance arises out of a state of things on one man’s property whereby his neighbour's property is exposed to danger” (this can be seen in Ken’s and Leonard’s case)
And also Interference with enjoyment of the property, the interference must be substantial in the sense that it must be “Materially interfering with the ordinary comfort, physically, of human existence not merely according to elegant or dainty modes and habits of living”.
The factors that Leonard must take into account when establishing whether to bring a claim of private nuisance against Ken. In deciding whether a private nuisance (of either type) has been committed by the defendant, the court will examine the activity complained of. They will weigh the nature of the kind and circumstances of the defendant's activity against the nature and extent of the interference caused to the claimant.
The test is objective (i.e. what a reasonable person would consider a nuisance rather than what the claimant himself considered a nuisance), and the court takes many factors into consideration, including the purpose or motive of the defendant (Ken) and the following:
The court will consider whether it was practicable for the Ken to prevent the interference or avoid it, as Ken was aware that toxiclear lorries had been present on his land. And if it could be shown that a Ken was operating a plant which constitutes as a nuisance, and with the expenditure of a reasonable sum avoid the nuisance, this will be taken to show whether Ken was acting unreasonably.
- Consider what arguments Ken may use in seeking to avoid liability.
The arguments that ken may use in seeking to avoid liability are, that he did not cause the nuisance therefore he should not be held liable for an employee of toxiclear, which in this case was James’s actions, he may of been aware of toxiclear lorries on his land but this does not indicate that he was aware of what they were doing on his land, thus, he could not of prevented it from happening or of foreseen that it would result in Leonard’s land being damaged.
Ken may file for the defence of Volenti non fit injuria (malcom), absolute statutory authority, the nuisance was caused by a stranger and the Ken could not possibly have known of it.
Contrast, however, Rennaway -v- Thompson (1980) where the nuisance complained of was noise from motorboat racing and water-skiing. The Court of Appeal held that a nuisance existed and they granted an injunction, which limited the number of days on which large-scale activities could take place, and limited the noise level on other occasions. They refused to follow Miller -v- Jackson, feeling that it was wrong to allow a nuisance to continue merely because the wrongdoer is willing and able to pay for any injury he may inflict.
- That the defendant's conduct would not have amounted to a nuisance had it not been for the contributory acts of others.
Abatement of Nuisances:
In addition to the usual remedies of damages and/or an injunction the law will sometimes allow the remedy of ‘abatement’, i.e. the removal of the nuisance.
However: -
- If there are two or more ways of abating a nuisance the less mischievous must be selected.
- Entry onto the land of a third party is not permissible.
- Notice should first be given to the occupier of the land in which the nuisance arises except:
(a) Where abatement is possible without entry, or
(b) In cases of emergency, such as a fire.
For example, abatement allows a person to cut off the branches of his neighbour’s trees if they overhang his land. This situation (the overhanging of branches) could constitute the tort of nuisance (e.g. the branches could obstruct the claimant’s right to light (an easement)) or it could constitute the tort of trespass to land (see later). The claimant could, therefore, instead of instituting a Court action in either, or both, of these torts, simply cut off the branches that actually overhang his land. However, the actual branches that he cuts off still belong to the neighbour. They don't become his property merely because they overhang his land. Therefore, he must give the branches back to the neighbour.
Remedies for the Tort of Nuisance:
- Abatement of the nuisance (see above)
- An action for damages and/or
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An injunction to prevent the nuisance continuing. It is sometimes more important to have the nuisance stopped than to be compensated for it and, therefore, the remedy of an injunction is very important. Remember, though, it is an equitable remedy and therefore it is discretionary (see the cricket case of Miller -v- Jackson on page 10).
As you will see, the tort of nuisance is not so involved as the tort of negligence, but it is an important, and a difficult tort, not from the point of view of the difficulty in learning about it, but from a practice point of view: that it usually involves neighbour disputes - and there is nothing so difficult as neighbour disputes; the usually escalate out of all proportion.
It is important that you are fully aware of the factors that will influence the court in deciding whether any particular events constitute a nuisance in the particular circumstances and also that the action is only available to a limited class of persons, i.e. those in possession (occupation) or a right to possession of land.
Will not be liable if the injury results from the faulty work of an independent contractor, provided the occupier took reasonable steps to ensure that the contractor was competent, and that the work was properly done.
(c) Explain whether Ken will be liable to compensate Malcolm.
The Act preserves the right of the occupier to plead the defence of volenti non fit injuria in respect of risks ‘willingly accepted’ by the visitor. Furthermore, the occupier is also further protected by the Law Reform (Contributory Negligence) Act 1945.
In the case of Bunker -v- Charles Brand & Son (1969), the claimant's employers were subcontractors of the defendants for tunnelling in connection with the construction of the Victoria Underground Line in London. The claimant carried out a modification to a digging machine whilst it was in operation. He was injured and sued the defendants for damages. The defendants were occupiers for the purpose of the Act. Their defence of volenti (consent) failed since the court held that knowledge of danger was not assent. Nevertheless the plaintiff’s damages were reduced by 50% in respect of his own contributory negligence.
Ken can also file a defence that Malcolm was trespassing on his land and therefore he can not be held liable for Malcolm’s actions.
Ken may file for the defence of Volenti non fit injuria (malcom), this means no injury is done to one who voluntarily accepts a risk. It doe s not apply where the claimant only knew of the existence rather than understanding it (Stewart v Lawson) nor does it apply where the claimant is forced to accept the risk (Smith v Baker (1891). It commonly applies in situation if physical harm is likely.
Ken will not be seen to be liable to compensate Malcolm due to it being an inevitable accident. Ken can never be liable for a pure accident. A pure accident means one beyond the defendant’s control. Ken could not predict that Malcolm was going to trespass on to his land to take a shortcut, which inevitably lead to him walking through the highly toxic waste which caused him to experience severe skin irritation. As illustrated in the case of: Stanley v Powell (1981)
The Occupiers’ Liability Act 1984 replaced the common law rules governing the duty of occupiers of premises to persons other than lawful visitors. The Act covers not only trespassers but also persons using rights of way who fall outside the meaning of a 'visitor' under the 1957 Act. For several years prior to 1984 the occupier's duty to trespassers was to act with common sense and humanity. This required all the surrounding circumstances to be considered, for example the seriousness of the danger, the type of trespasser likely to enter, and in some cases the resources of the occupier.
To establish whether Ken can be exempt from liability to compensate Malcolm, these factors will contribute to the case:
The main provisions of the 1984 Act (which, remember, applies to unlawful visitors) are:
The occupier owes a duty if, he is aware of the danger on his premises or has reasonable grounds to believe that it exists; and he knows, or has reasonable grounds to believe, that someone is in (or may come into) the vicinity of the danger; and the risk is one against which in all the circumstances of the case he may reasonably be expected to offer that person some protection. The duty is to take such care ‘as is reasonable in all the circumstances’ to see that the person to whom the duty is owed does not suffer injury on the premises by reason of the danger concerned.
TRESPASS TO LAND.
James and malcolm
Trespass to land is the ‘Direct interference with the possession of another person's land without lawful authority’.
It is a tort actionable ‘per se’, i.e. without proof of loss. It is actionable merely because it has been committed.
Possession:
Since trespass is a wrong done to the possessor of land, only he (rather than the owner, unless, of course, the owner is also in possession) can sue. Possession includes not only physical occupation, but occupation through servants and agents. Mere use, for example by a lodger or licensee (visitor) is not ‘possession’ in law.
Interference:
This must be direct interference, either by entering on land, or remaining on the land after permission to stay has ended. If a right to enter on the land is abused this may alter the position of a lawful visitor to that of a trespasser.
The general defences of volenti, necessity, inevitable accident, self defence and statutory authority all apply, but mistake is no defence. Special defences, however, are, entry to exercise a common law right, entry by licence.
OCCUPIERS’ LIABILITY
Frequently common law duties of care have been subject to codifying statutes - those statutes that have enacted what was formerly the common law, into statute form. An example of this is the liability that the occupier of premises has for injuries that may be sustained by persons on their premises. Two statutes - The Occupiers Liability Act 1957 and the Occupiers Liability Act 1984, now cover this area of tort. The first of these statutes dealt with an occupier’s liability to lawful visitors and the second, to persons other than lawful visitors.
An ‘occupier’ is a person who has some degree of control over the premises. He need not necessarily be the owner. It is also possible for there to be more than one occupier.
“Whether a person has some degree of control arising from their presence or activity on the premises”.
(D) Explain whether Toxiclear will be liable in any way for the actions of James in dumping the waste as he did.
Joint and several liability: liability is straight forward, with a single act causing loss or injury. Often more than one breach of duty or more than one act causes the damage, and liability may be independent or joint or several. Independent liability is straight forward, there are two separate tortfeasers which cause damage through separate torts; damage is separate, so each tortfeaser is liable for the particular damage caused.
Joint liability can arise in a number of different ways. All torfeasers commit the same tortuous act, often with a shared purpose. If vicarious liability applies both the employer Toxiclear and the employee being James are jointly liable though only one would be sued. The person who created the nuisance (James) may be sued (i.e. court proceedings can be instituted against him or her) even if he has subsequently vacated the land.
