Edge Hill University - Law of Torts Revision Lecture

Law of Torts Revision Lecture edgehill.ac.uk  Exam Format Answer Two Questions. The compulsory question in section A and one question from Section B. Section A: Problem Question Section B: Essay Questions 2 hours total plus 10 minutes reading time...

Law of Torts Revision Lecture edgehill.ac.uk  Exam Format Answer Two Questions. The compulsory question in section A and one question from Section B. Section A: Problem Question Section B: Essay Questions 2 hours total plus 10 minutes reading time edgehill.ac.uk  Problem Question One question with a number of issues… - Occupiers’ liability edgehill.ac.uk  4 L A W 1 0 0 5 TO R T L AW Revision OCCUPIERS’ LIABILITY edgehill.ac.uk PROBLEM QUESTION Adam inherits a large house from his mother. He moves in and decides to have substantial renovations carried out. Whilst these renovations are in progress, Adam decides to host a party to welcome in his new neighbours. His neighbours are aware that Adam is renovating the house. Bill and his two- year- old son Ben are invited and decide to attend. Ben becomes bored and wanders into a room marked ʻ Danger – do not enter ʼ. He stands on a nail and suff ers a bad cut. Bill, while looking for Ben hears his screams coming from the room. He sees the sign and standing outside the room turns on the l ight switch in that room so that he can see the nature of the danger. The rewiring of the house has not been completely f inished and as a result of this Bill is electrocuted and suff ers serious burns to his hands. John, who is aware that Adam ʼ s mother always had a good wine collection, breaks into the locked cellar intending to help himself to some wine but slips on a cork on the step and breaks both his legs. Advise Adam as to his tortious l iabilities. 5 edgehill.ac.uk  ANSWERING THE PROBLEM QUESTION Your answer should identify that the scenario set out in the question concerns occupiers’ liability - incidents that have occurred which are related to the condition of the premises. Begin by identifying the potential defendant(s) and the potential claimant(s). Examine the facts 6 edgehill.ac.uk  IDENTIFY A POTENTIAL OCCUPIER FACTS Adam inherits a large house from his mother etc - we can therefore presume Adam has ownership of the property. He would appear to have sufficient degree of control over the premises – therefore he is an occupier. Lord Denning in Wheat v E. Lacon Ltd 1 All ER 582 “Wherever a person has a sufficient degree of control over premises that he ought to realise that any failure on his part to use care may result in injury to a person coming lawfully there, then he is an occupier”. Can look at Adam as potential defendant. 7 edgehill.ac.uk  FACTS Adam inherits a large house from his mother. He moves in and decides to have substantial renovations carried out. Whilst these renovations are in progress, Adam decides to host a party to welcome in his new neighbours. His neighbours are aware that Adam is renovating the house. Indicates potential Claimants may have knowledge of the fact that works were being carried out in the house. Relevant later as we move through the question. Problem questions: examine each issue in turn – ideally set out as they appear in the problem question to avoid missing a particular point which could potentially result in you losing marks. 8 edgehill.ac.uk  POTENTIAL CLAIMANTS BILL SUFFERS ELECTRICAL INJURY Bill – we are told Bill and his son are invited to Adam’s house and decides to attend – therefore Bill appears to be a lawful visitor. As a lawful visitor can apply Occupiers Liability Act 1957 – particularly s2(1) of the Act – occupier of the premises owes common duty of care to lawful visitors. s2(1) OCLA 1957 An occupier of premises owes the same duty, the common duty of care, to all his visitors, except in so far as he is free to and does extend, restrict, modify or exclude his duty to any visitor or visitors by agreement or otherwise. Turning back to facts: effect of warning sign 9 edgehill.ac.uk  BILL – LAWFUL VISITOR - EFFECT OF WARNING SIGN Facts: Bills sees the warning sign and standing outside the room turns on the light switch in that room so he can see the nature of the danger. H as Bill gone beyond the level of permission for which he was invited to the property - which would then make him a trespasser? (eg The Calgarth ; Tomlinson v Congleton Borough Council or Geary v JD Weatherspoon ). It is apparent that Bill hasn’t actually entered the room which visitors are warned against entering. Could argue that Bill has been very prudent as a visitor in the way he has dealt with this particular situation – ie by putting on the light before considering whether to enter the room which is taped off. Could Bill become a trespasser based on the facts.? 10 edgehill.ac.uk  BILL - EFFECT OF WARNING SIGN FACTS: The rewiring of the house has not been completely finished and as a result of this Bill is electrocuted and suffers serious burns to his hands Need to consider nature of the danger and the wording of the warning sign – sign says danger do not enter - is this sufficient taking into account way injury occurs? To absolve Adam of liability need to consider whether the notice in the warning sign was sufficient to enable the visitor to be reasonably safe. Relevant provision s2(4)(a) of the OLA 1957. Rae v Mars [1990 ] held that where danger is extreme or unusual, its not enough for there to be a general warning; a barrier or additional notice should be placed. 11 edgehill.ac.uk  BILL - EFFECT OF WARNING SIGN Based on the facts, is the electrical danger deemed to be an unusual danger to visitors? Facts: Bill knows that renovations are taking place - could argue that just knowing renovations are taking place would put him on notice of the fact that there would be general hazards at the property which could be a danger to visitors but that you wouldn’t necessarily expect a danger that could cause this type of incident to occur without there being a specific warning about that specific danger (Rae - extreme danger) Adam was aware the electrics where unfinished and could constitute a danger – therefore could argue he should have been more specific in the warning he gave - in the alternative he should have taken steps to prevent visitors having access to the area(s) in the house which are subject to the rewiring (eg setting up a barrier) On the facts could argue Adam has not taken sufficient steps to ensure that the visitor – Ben – was reasonable safe – therefore Adam has breached his common duty of care to act reasonably in all the circumstances to see that Ben as a lawful visitor would be reasonably safe. 12 edgehill.ac.uk  TIPS: Looking for extra marks? Could expand your answer to say that whilst we don’t have sufficient information, it is possible that because of the nature of the particular renovation work that’s been carried out - electrics – Adam may not have carried out the works himself - he may have instructed the services of an electrician/independent contractor – in which case it could be that it’s the independent contractor who may be liable in negligence. 13 edgehill.ac.uk  INDEPENDENT CONTRACTORS LIABILITY OLA 1957 s.2(4)(b) – an independent contractor could be liable in negligence. How would that be decided? Would need to establish whether Adam has acted reasonably in allocating the task to the person(s) who did the work. If he has acted reasonably then as an occupier he would not be responsible - instead an indep contractor may be liable in negligence. See Hazeldine v Daw. Depends ultimately on whether Adam has acted reasonably in entrusting the work to the independent contractor. If not - eg he appointed someone without qualifications to do the work - then taking into account the inadequate warning sign he would be liable under OLA 1957. 14 edgehill.ac.uk  BEN - MINOR Ben is invited to the party - lawful visitor – we rely on s2(1) OLA 1957. Move on to s2(3)(a) – occupier of premises must be prepared for children to be less careful than adults – (presumably Adam knows Ben has a child as they are neighbour s). Can we apply the allurement principle? Glasgow Corp v Taylor or Jolley v Sutton (more recent case) - where a child will be allured to a danger. Facts – Ben is wandering around the house – could be things in the house, even the sign itself if eg it’s a brightly colored sign, which actually allure the child to the area of the particular danger. Unlikely Ben would be able to read the sign - he’s only 2 years old - therefore would say the warning sign is enough to ensure that the visitor is reasonably safe under s.2(4) (a) = not looking very good for Adam at this point. 15 edgehill.ac.uk  BEN However we are aware of the principle in the case of Phipps v Rochester and more recently Bourne Leisure - principle is that ordinarily young children should be supervised. Ben is a young child. Assume parents – as neighbours - knew that the renovations at the house were taking place - the reasonable parent would not allow their child to wander round a house in which renovations are taking place. Apply Bourne Leisure - would not expect to impose a more onerous duty on an occupier than would have imposed on [Bill] the parent. With that in mind, in terms of Ben’s injuries, Adam unlikely to be liable under the OLA 1957. 16 edgehill.ac.uk  JOHN John – is aware that Adam’s mother always had a good wine selection, breaks into the locked cellar intending to help himself to some wine but slips on a cork on the step and breaks both of his legs Is John a lawful visitor or has he gone beyond the permission for which he was invited to the property? (If so becomes a trespasser) We presume John has been invited to the party – but he breaks into the locked cellar – could argue his actions align with the Calgarth, Geary case or Tomlinson v Congleton BC cases – whilst he starts off as a lawful visitor by breaking into the cellar he has gone the permission for which he was invited = John becomes a trespasser. [Would be less clear if the cellar door was open - then it would need to be considered whether you would expect someone to wander into the cellar if it was open - we can’t answer that question.] If John becomes a trespasser - need to apply s.1(3) OCCUPIERS LIABILITY ACT 1984 17 edgehill.ac.uk  JOHN s1(3) OCCUPIERS LIABILITY ACT 1984 Trespassers - there is no equivalent to the 1957 Act - the common duty of care - a duty of care is only owed to trespassers in certain circumstances. All 3 conditions of s1(3) of the OLA 1984 must be satisfied in order to establish a duty of care towards a trespasser What are the conditions that must be satisfied? 1. The occupier is aware or has reasonable grounds to believe the danger exists AND 2. The occupier knows or has reasonable grounds to believe that the trespasser is in the vicinity of the danger AND 3. The risk is one against which in all the circumstances the occupier may reasonable be expected to offer some protection Note: the risks of injury must be due to the state of the premises 18 edgehill.ac.uk  APPLYING S1(3) OLA 1984 TO THE FACTS…. 1. Is Adam aware the danger exists? Ask: what caused the injury – the corks - could argue Adam knew there were corks on the stairs - so could possibly say Adam is aware that there is a danger (would depend on further evidence) 2. Is the occupier – Adam -aware that someone would be in the vicinity of the danger? Even if there was no staircase in the cellar he cannot be aware that someone would be in the vicinity of that danger on the basis that he has locked the door to the cellar – therefore he can’t be aware that someone would be in the vicinity of the danger because he would not have a reasonable belief that anyone could access the cellar. So the second condition has failed. As the second condition has failed you don’t need to go on to consider the third criteria because all the criteria need to be established. As at least one of the criteria cannot be established there is no requirement to discuss the third requirement - May reasonably be expected in all the circumstances to offer some protection to the trespasser against the danger. Duty of care not established 19 edgehill.ac.uk  Essay Questions Choose 1 Vicarious liability Duty of Care – Statements Nuisance Breach of Duty edgehill.ac.uk  Negligent Misstatement Revision edgehill.ac.uk  Hedley Byrne v Heller UKHL 4 (HL) Facts: The appellants were advertising agents. They asked their bankers to inquire into a company's financial stability and their bankers made inquiries of the respondents, who were the company's bankers. The respondents gave favourable references but stipulated that these were "without responsibility." In reliance on these references the appellants placed orders with the company which resulted in a loss of £17,000. They brought an action against the respondents for damages for negligence. edgehill.ac.uk edgehill.ac.uk  That a negligent, though honest, misrepresentation, spoken or written, may give rise to an action for damages for financial loss caused thereby, apart from any contract or fiduciary relationship, since the HOL law will imply a duty of care when a party seeking information from a party possessed of a special skill trusts him to exercise due held: care, and that party knew or ought to have known that reliance was being placed on his skill and judgment. However, since here there was an express disclaimer of responsibility, no such duty was, in any event, implied. edgehill.ac.uk Key judgments in Hedley Byrne v Heller edgehill.ac.uk  Irrespective of any contract, if someone who is possessed of a special Lord skill undertakes to apply that skill for the Morris assistance of another person, who relies upon such skill, then a duty of care will arise. edgehill.ac.uk  Lord Reid A reasonable man, knowing that he was being trusted or that his skill and judgment were being relied on, would, I think, have three courses open to him. 1) He could keep silent or decline to give the information or advice sought: or 2) He could give an answer with a clear qualification that he accepted no responsibility for it or that it was given without that reflection or inquiry which a careful answer would require: or he could 3) Simply answer without any such qualification. If he chooses to adopt the last course he must, I think, be held to have accepted some responsibility for his answer being given carefully, or to have accepted a relationship with the inquirer which requires him to exercise such care as the circumstances require. edgehill.ac.uk  Although no duty of care was found due to the disclaimer, the law lords also considered what the position would be had there been no disclaimer. They stated that a duty of care could arise in some situations OBITER where advice was given, even where the only harm caused STATEMEN was what would otherwise be regarded as pure economic TS loss. BUT limited to where the following four conditions were met. edgehill.ac.uk  Four conditions: 1. a special (or 2. The party preparing 3. There has been ‘fiduciary’) relationship the advice/information 4. Such reliance was reliance on the of trust and has voluntarily reasonable in the advice/information by confidence exists assumed the risk circumstances the other party between the parties; (express or implied); edgehill.ac.uk  Hedley Byrne v Heller Lord Reid: 1. The party seeking information or advice was trusting the other to exercise such a degree of care as the circumstances required, where it Special was reasonable for him to do that, and where the other gave the information or advice when Relatio he knew that the inquirer was relying on him. (at 486) What should be considered in a special nship relationship? Specialist skill/knowledge Purpose of advice edgehill.ac.uk  Facts: An Esso employer advised Specialist Mardon, who was thinking of leasing a knowledge: petrol station, that they would sell at least 200,000 gallons of petrol per year. Mardon Esso only sold 78,000 in 15 months. CA Held: The advice of the Esso Petroleum employer was held to be negligent and that a duty of care existed regarding pure Co Ltd v economic loss. Mardon A special relationship existed- Esso’s employer assumed responsibility to QB Mardon based on his expertise in assessing the market for petrol sales. 801 (CA) Mardon subsequently relied on this. edgehill.ac.uk  Facts: Caparo was a company that held Purpose of shares in another public company, F. the advice: The public accounts of F (prepared by the auditor D’s) indicated that it was very Caparo profitable. Industries In reliance on the advice, Caparo bought more shares in F. plc v Caparo lost money as the accounts were Dickman negligently prepared. Held: The D’s were not liable. The purpose of the accounts were to enable 2 AC the shareholders to make decisions about the management of the company; they were not intended to be the basis of an investment decision. 605 (HL) Lord Bridge – Specific advice had to be given for specific purpose in order for special relationship to exist. edgehill.ac.uk 2. Voluntary assumption of risk It is reasonable to suggest that in a special relationship, any party can be said to assume the risk that the statement made is reliable. Smith v Eric Bush 1 AC 831 Facts: D was a surveyor employed by Abbey National to assess the value of the property, which the claimant was buying. D claimed that the house was not in need of additional repairs, which was incorrect as the property had structural damage and the chimney collapsed and broke through the roof. No contract- contact existed between C and AN. Contract included an exemption clause. Claimant brough a claim in contract and tort, claiming that the clause was unreasonable and a DOC was owed. edgehill.ac.uk  Exemption clause was unreasonable pursuant to the Unfair Contract Terms Act 1977. On the point of the issue of Held: assumption of responsibility- D knew or ought to have known that C would rely on the report as he was in the business of giving advice via his surveys. edgehill.ac.uk  Customs & Facts: Custom officers obtained freezing orders on the bank accounts of Excise two companies who were in debt with their taxes. Due to this, Barlcays had Commission responsibility not to let any payments leave the accounts, which they ers v negligently did. Barclays Customs and Excise sued for the money lost. Bank Held: No DOC. No assumption of responsibility- this was not voluntary but UKHL 28 rather the bank was required by law to (HL) accept the freezing order. edgehill.ac.uk  Spire Property Development LLP v Withers LLP EWCA Civ 970 Facts: Solicitor had provided advice going beyond the scope of the retainer they were contracted for. The issue concerned if responsibility had been assumed. CA: No assumption of responsibility here, but the court must consider the ‘extent of any such assumption … objectively in context and without the benefit of hindsight’ and the ‘primary focus’ must be on what was said in the exchanges between the solicitor and client. Demonstrates the incremental development and how this assessment is fact based. Importance and development of assumption of responsibility edgehill.ac.uk  ¾. HOL held: no DOC was owed in respect of the economic loss caused by Caparo’s reliance on the Reasonabl information provided as it was not reasonable to e have relied in this. Company audits were an annual requirement for Reliance: businesses under the Companies Act 1985, and Caparo the information within them was provided for shareholders; not for potential investors. To allow Industries potential investors to rely on it would include a plc v class of persons of an indeterminate size. Dickman Thus, in Caparo’s capacity as a shareholder of Fidelity, the information could be relied upon, but in 2 its capacity as a potential investor, it could not be. AC 605 Reliance on information was not reasonable and (HL) therefore no special relationship exists. edgehill.ac.uk  Facts on slide 19 Smith v Demonstrates the point that Eric S surveyors would owe a duty of Bush care to the buyer, as they would be aware that the buyer would rely on the information AC 831 provided by them, and it would (HL) be reasonable for buyers to do so. edgehill.ac.uk  Developments Hedley Byrne: Post Hedley Byrne: Pre Hedley Byrne: recovery for courts adopt more no recovery for pure economic loss in of a flexible economic loss relation to negligent approach misstatement edgehill.ac.uk  Facts: Two sisters were cut out of White v their father’s will following an argument. Once they had Jones reconciled, the father reinstructed his solicitor to change his will to 2 include them. Following his death, it was discovered that the change was AC 207 never made. (HL) HOL Held: Solicitor was negligent, and the Cs were awarded the economic loss they had suffered. edgehill.ac.uk The reinstruction to change the will and failure to do so was not a negligent misstatement as in the case of Hedley. Instead, it involved a negligent provision of a service which caused the loss. Was there a special relationship where the REFLECTI risk was assumed and reasonably relied upon? ON Does the special relationship between the Analysis of solicitor and client extend to the beneficiaries? White Was the decision based on achieving justice, therefore causing the court to adopt a flexible approach? Did the court artificially create a duty here? edgehill.ac.uk  Facts: C sought a reference from the Ds when he was made redundant. The reference advised that he was dishonest and incompetent, and C was not employed. C sued D in negligent Spring v for the economic loss of him not Guardian getting the job. Held: DOC to take care when writing Assurance references was owed. 2 AC Demonstrates an extension of the Hedley principles to apply to third 296 (HL) parties- damaged caused to C here by A relying on B’s statement/reference. edgehill.ac.uk  Facts: Mr Barakat visited the Playboy Club, a London casino, and applied for credit. The casino asked Barakat to provide a credit reference and they made Banca the request through its associated company, Burlington. The request for a reference was on Nazionale del Burlington letterhead and was submitted to Banca Lavoro SPA Lavoro by the casino's bank. (Respondent) Banca Lavoro wrote in response that Barakat was v Playboy Club trustworthy up to £1.6m. The bank had no reasonable London basis for making that statement. The casino extended Limited and credit of 1.25 million to the player in reliance on the reference. After accumulating net winnings of others £427,400 Mr Barakat returned home to Lebanon. His (Appellants) fraudulent cheques were returned unpaid, and the UKSC casino suffered a loss. 43 Trial: Casino succeeded CA- overturned edgehill.ac.uk  Supreme Court Unanimously dismissed the appeal and confirmed that the bank did not owe a duty of care to the casino regarding the reference. The bank did not know, and had no way of knowing, that the reference was or was likely to be relied on by the casino. A duty was owed to Burlington, to whom the reference was addressed, but as Burlington had suffered no loss it could recover no damages. Lord Sumption: stated that for the maker of a statement, such as a credit reference, to owe a duty of care, it must not only be likely that the statement will be communicated to and relied on by the recipient; it must also "be part of the statement's known purpose" that it should be communicated to and relied upon by the recipient. edgehill.ac.uk  Essay Q Vicarious Liability Law of Torts 1005 Pendlebury 45  Is the Act Committed Within the “Course of Employment”? Law of Torts Pendlebury 46  Lister v Hesley Hall LTD 2002: A new approach The Warden of a boarding-house school sexually abused the claimants who were children in the boarding house. What the warden did could not be described as an unauthorised method of doing something authorised by the employers – it was the opposite of what he was employed to do. Held – The School were vicariously liable on the basis of the acts being connected to the employment. Law of Torts Pendlebury 47  Lister cont… The question to as is whether: The wardens torts were so closely connected with his employment that it would be fair and just to hold the employers vicariously liable. On the facts of the case the answer was yes. The sexual abuse was inextricably interwoven with carrying out by the warden of his duties. There has to be a closeness of connection between the tortious conduct of the employee and their employer. The next few slides explore the application of Lister 48  Mattis v Pollock 2003 Mattis (M) claimed for damages against Pollock (P), a nightclub owner, for personal injuries inflicted on him in a knife attack by Cranston (C), an unlicensed doorman employed by P. The stabbing had taken place outside the nightclub several minutes after a violent incident had occurred inside. That incident had involved assaults by C on two customers in which M had sought to intervene. C escaped from the nightclub with a number of customers in pursuit. M left the club and met up with the group of customers outside. Law of Torts Pendlebury 49  Mattis cont… C had been employed to keep order and P had encouraged and expected him to do so in an aggressive and intimidatory manner. Although the incident developed in stages, at each of which it might have ended, the stabbing could not be treated in isolation. Whilst C's behaviour included an important element of personal revenge, a broad approach dictated that P's responsibility for C's actions was not extinguished at the time of the stabbing and vicarious liability was established. Law of Torts 1005 Pendlebury 50 Vicarious Liability – Further Examples of the Application of Lister MAGA v Trustees of the Birmingham Archdiocese of the Roman Catholic Church EWCA Civ 256 Weddall v Barchester Health Care Ltd; Wallbank v Wallbank Fox Designs EWCA Civ 25 Mohamud v WM Morrison Supermarkets Plc [ UKSC Supreme court - Very expansive See - Mohamud (SC) Mohamud was been applied in Bellman v Northampton Recruitment Ltd EWCA Civ 2214 Still the principle of ‘Frolic of their own’ VM Morrisons v Various Claimants 2020 UKSC 12 Interesting Webinar on VL - https://www.3pb.co.uk/vicarious-liability-and-reflective-loss/ Law of Torts 1005 Pendlebury 51 Application of the VM Morrisons v Various claimants. Chell v Tarmac Cement and Lime Ltd an employer was not vicariously liable for the actions of an employee who, as an ill-judged joke, intentionally caused a loud explosion near the ear of another employee causing noise-induced hearing loss in his right ear and tinnitus: ‘there was not a sufficiently close connection between the act which caused the injury and the work of [the tortfeasor] so as to make it fair, just and reasonable to impose vicarious liability on Tarmac’ (at Davies LJ at ). Trustees of the Barry Congregation of Jehovah's Witnesses (Appellant) v BXB (Respondent) UKSC 15 VL in the Supreme Court again Supreme Court Judgment 2TG Webinar - Vicarious Liability ( Re)Revisited 54 BREACH OF DUTY – ESSAY - REVISION 5 NEGLIGENCE 5 BREACH OF DUTY The 2 stage approach – consider: What was the required standard of care expected from the Defendant in the circumstances - Legal issue How did the Defendant actually behave - Did D’s conduct fall below that required standard of care? Fact specific/subjective test 56 BREACH OF DUTY –- DID THE D FALL BELOW THE REQUIRED STANDARD OF CARE? There are a number of considerations which the court may take into account when determining whether or not reasonable care has been taken in all the circumstances. These are questions of fact; the circumstances in which the accident/injury occurred They include:- 1. The likelihood of injury 2. The gravity of injury 3. The extent of action needed to avoid the risk of injury 4. The social utility of defendant's act, and custom and practice. 5 LIKELIHOOD INJURY WILL 7 OCCUR BOLTON V STONE 1 ALL ER 1078 House of Lords held - for an act to be negligent there must be, not only a reasonable possibility of its happening, but also of injury being caused thereby; On the facts, the risk of injury to a person on the highway resulting from the hitting of a ball out of the ground was so small that the probability of such an injury would not be anticipated by a reasonable man; and, therefore, the appellants were not liable to the respondent. 5 SEVERITY OF THE INJURY 8 PARIS V STEPNEY BOROUGH COUNCIL 1 ALL ER 42 House of Lords held that the Respondents were liable. the condition of the appellant's eyes, the knowledge of the respondents, the likelihood of an accident happening, and the gravity of the consequences if an accident should occur, were relevant facts to be taken into account in determining the question whether or not the respondents took reasonable precautions for the appellant's safety.  COST OR PRACTICABILITY 5 OF TAKING PRECAUTIONS 9 LATIMER V AEC LTD 1 ALL ER 1302 Owing to an unprecedented downpour of rain and through no want of reasonable care on the part of the occupiers, a factory was flooded and oil from a cooling mixture pumped to machines through channels in the floor became mixed with water. As the water receded, the floor, which was level and structurally perfect, was left in a slippery state, and, although some precautions had been taken the claimant slipped and was injured. Held – No liability as the only way of totally eradicating the risk would have been to shut factory down. This precaution was not justified given the small risk. See also Harris v Perry EWCA Civ 907  SOCIAL VALUE OF THE D’S ACTIVITY 6 0 WATT V HERTFORDSHIRE COUNTY COUNCIL 2 ALL ER 368. Held - the defendants were under no duty to have a vehicle specially fitted to carry the jack available at all times; the risk taken was such as would normally be undertaken by a member of the fire service and was not unduly great in relation to the end to be achieved; and, therefore, the defendants were not liable for damages for negligence to the fireman. 61 COMPENSATION ACT 2006 1Deterrent effect of potential liability A court considering a claim in negligence or breach of statutory duty may, in determining whether the defendant should have taken particular steps to meet a standard of care (whether by taking precautions against a risk or otherwise), have regard to whether a requirement to take those steps might— (a)prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or (b)discourage persons from undertaking functions in connection with a desirable activity. 62 Essay Q – Private Nuisance edgehill.ac.uk  PRIVATE NUISANCE Key cases - Coventry v. Lawrence UKSC 13 , Fearn v Tate Gallery UKSC 4 63 edgehill.ac.uk  A Working definition “Continuous, unlawful and indirect interference with the use or enjoyment of land, or of some right over or in connection with it.“ (Winfield and Jolowicz on Tort, 18th edition, p712.) 64 edgehill.ac.uk 65 Types of Damage in Private Nuisance St Helens Smelting Co v Tipping (1865) Distinguish between: Material Damage and Loss of enjoyment of land (loss of amenity) edgehill.ac.uk  St Helens Smelting Co v Tipping 1865 C bought an estate near to the D’s copper smelting works. Fumes from works damaged C’s trees and crops. Court drew a distinction between nuisances causing material injury (damage) to the land and those which caused personal discomfort (cf loss of amenity) Material damage will always 66 edgehill.ac.uk  Loss of Amenity:  Loss of amenity - where the interference causes sensible personal discomfort the court will apply a reasonableness test in order to determine whether it amounts to a nuisance.  In Hunter v Canary Wharf LTD H of L stressed that a claimant in a nuisance case claims on behalf of the land, whether the action falls on the material damage or amenity side.  This means that in order to establish damage they must show damage to the land in capital or in terms of amenity value. 67 edgehill.ac.uk  Locality Sturges v Bridgman 1879 Confectioner had for more than 20 years used industrial pestles and mortars. This caused no interference until the Cl doctor built and extension consulting room in his garden. Noise and vibration were said to be a nuisance. Doctor succeeded as the area consisted largely of doctors consulting rooms. “what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey” Note: What might be a nuisance in the countryside may not be a nuisance in an industrial area. 68 edgehill.ac.uk  Duration This question frequently arises in connection with building works - The courts have laid down a principle that providing these are carried out with reasonable skill and care and interference is minimised then no nuisance is committed. Andrea v Selfridge and co LTD 1938 69 edgehill.ac.uk  Public Utility Generally even if something is in public interest it will NOT prevent an actionable nuisance. Bellew v Cement Co LTD 1948 Public utility may however influence the court in deciding whether or not to award an injunction. Miller v Jackson 1977 See also Coventry v. Lawrence 70 edgehill.ac.uk  Fearn and Others v Board of Trustees of the Tate Gallery  2016 the Tate Modern opened a ten-storey new building with a viewing platform on its top floor, offering panoramic views over London. However this viewing platform offered views directly into neighbouring apartments which were seen by around 500,000 to 600,000 visitors each year.  The Flats had walls made almost entirely of transparent glass. The lessees of the flats sought an injunction to prevent the public viewing their flats from the platform – or alternatively damages.  The High Court found in favour of the Tate Modern, with the court stating that they were making a reasonable use of their land. They also stated that the lessees had exposed themselves to this nuisance, and this could be dealt with by them putting up blinds or curtains to shield the intrusion.  The Court of Appeal again found against the residents, but on different reasoning, this time that they stated that being merely overlooked should not constitute a nuisance. 71 edgehill.ac.uk 72 Fearn and Others  continued …. The Supreme Court found in favour of the residents.  They reasoned that the intrusion from the viewing platform at the Tate Modern had gone beyond overlooking, but was deliberate viewing from the platform supplied by them.  This was affecting the ordinary use and enjoyment of the resident’s property.  They also found that the Tate Modern - in providing this viewing platform - was going beyond their ordinary and common use of their property, as this was not a common feature of an art gallery.  They moved from the reasoning of the former courts, looking at what was reasonable use of the land, to rather what was common and ordinary use of the land. edgehill.ac.uk 73 Fearn continued  There is concern that this could widen the scope for further claims in nuisance  Nuisance is concerned with maintaining a balance between the conflicting rights of neighbouring landowners but it does not provide a remedy for every annoyance suffered by a neighbour  The Supreme Court recognised that anyone should be free to build on land as they choose – and that just because someone can look into another property this will not automatically be a nuisance.  This may however impact on future builds, and there may be consideration of what is ordinary and common use of land in cases of nuisance, rather than what is reasonable; particularly where buildings have been altered. edgehill.ac.uk  Defences Coming to the nuisance is generally not a defence Sturges v Bridgman and Miller v Jackson – although cross reference to decision in Coventry v Lawrence Usefulness is not a defence. (It is a factor to be considered) Prescription will be a defence if the nuisance had been actionable for a period of 20 years and the claimant was aware that it affected his interests during that period. See Sturges v Bridgman 74 edgehill.ac.uk  Remedies: Injunction Primary remedy in nuisance. It is equitable so therefore discretionary.. Discretion not to award damages should be exercised only in exceptional circumstances. Shelfer v City of London Electric Lighting Co 1896. a) Where the injury to C’s legal right is small; and b) Is capable of being estimated in money terms; and c) Is one that can adequately be compensated by a small payment; and d) It would be oppressive to the D to grant an injunction. See Miller v Jackson and Kennaway v Thompson 1981 75 edgehill.ac.uk  Injunction v Damages  Where the nuisance causes damage to the land damages will be for the depreciation in the value of the land.  In relation to loss of amenity damages are for diminution in value during the period the nuisance persists. Hunter v Canary Wharf Ltd  The remoteness of damages test in nuisance is the same as in negligence – the defendant must have been able to reasonably foresee the kind of damage that occurred. Key cases - Coventry v. Lawrence UKSC 13, Fearn v Tate Gallery UKSC 4 76 edgehill.ac.uk  Support I will be in the lecture theatre to take questions Thursday 1st May at 10am No seminars on the 1st May E-mail me if you need a one-to-one MS Teams meeting over Easter. Availability - Wednesday and Thursdays PM I will create a revision materials folder on blackboard edgehill.ac.uk