UNIT3 ASSIGNMENT4 LAW OF TORT

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GENERAL PRINCIPLES OF LAW

UNIT 3:  THE LAW OF TORT

ASSIGNMENT No. 4 : END OF UNIT ASSIGNMENT

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Toxiclear is a Company, which undertakes the disposal of all kinds of wastes.  All employees engaged in the actual disposal work have strict instructions that they are only to dump waste at properly approved sites.  However, in view of the bonus payments that can be earned for speedy work, some employees are inclined on occasion to dump materials on private land without permission.

  • James was one such employee and he dumped a load of highly toxic waste on a part of farmland belonging to Ken and which was not currently in use.  Though it was pointed out to Ken by one of his farm workers that a Toxiclear lorry had been seen on his property, Ken took no action.

  • Unusually heavy rains caused the toxic waste to seep into the soil and some found its way into water, which ran through neighbouring land owned by Leonard, resulting in considerable damage to his crops.  
  • At about the same time, Malcolm, a keen walker, deliberately left a footpath so as to take a short cut across Ken's land.  His route took him past the waste, which he stopped to examine.  A few days later, he began to experience severe skin irritation, which has proved painful and very difficult to treat.

(i)          Discuss all the causes of action that Leonard may have against Ken.                

(ii)         Consider what arguments Ken may use in seeking to avoid liability.

(iii)        Explain whether Ken will be liable to compensate Malcolm.

(iv)       Explain whether Toxiclear will be liable in any way for the actions of                      James in dumping the waste as he did.    

  1. Discuss all the causes of action that Leonard may have against Ken.

        

The action that Leonard may have against ken are as follows: He may seek damages on the grounds of private nuisance as “An unlawful interference with the use or enjoyment of his land”. The present law of private nuisance developed from the old ‘Assize of Nuisance’, which was only available to freeholders (people who owned the freehold of land). Today, the claimant (Leonard) must still prove interference with occupation of their property, or enjoyment of rights over their property, such as the right to light, the right to support or a private right of way. As result of a toxiclear employee (James) dumping highly toxic waste on Ken’s land, Leonard’s land was damaged due to this he may be entitled to seek damages. And it can also be seen that Ken was aware of toxilcear lorries on his land as he was notified but he chose to take no action this may be due to the fact that the land was not in use, therefore , Ken neglected his duty to his own land and intern caused material damage to Leonard’s land.

There are two types of private nuisance and they can be defined as:

There can be an interference with land itself occupied by the claimant and Interference with ‘servitudes’ (also more commonly called ‘easements’ or ‘profits’) enjoyed by the claimant over the land occupied by another, (i.e. ‘servitudes’ are rights of third parties that exist over land, e.g. rights to light, rights to support, rights of way, rights to graze animals, fishing rights, etc.). Private nuisance, as can be seen, can be further subdivided into two categories: Indirect interference causing material damage Such as, smoke, gas, heat, vibrations, and Roots (of trees). “Material damage” must be “a physical deterioration of the property which must be visible to ordinary persons without recourse to scientific evidence”.

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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 ...

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