Tort on Trespass and Nuisance Pitting - Coursework Example

East London Department: Architecture, Computing & Engineering Unit/Unit Number CE 2218 Contract Administration Title of the piece of Work: Tort: Trespass/Nuisance. Date: Index Title page………………………………………………………………………………………………………………………….……..1 Index……………………………………………………………………………………………………………………………….…….…2 Introduction…………………………………………………………………………………………………………………….…….…3 Rationale…...3 Case study 1……………………………………………………………………………………………………………………….…….4 Question 1…………………………………………………………………………………………………………………….….………4 Question 2…………………………………………………………………………………………………………………….…………5 Question 3…………………………………………………………………………………………………………………….…………5 Question 4………………………………………………………………………………………………………………….……………6 Question 5…………………………………………………………………………………………………………………….…………7 Question 6………………………………………………………………………………………………………………….……………8 Question 7……………………………………………………………………………………………………………….………………8 Question 8………………………………………………………………………………………………………………….……………8 Case study 2……………………………………………………………………………………………………………….…………...9 Case study a……………………………………………………………………………………………………………….…….………9 Case study b……………………………………………………………………………………………………………………………10 Conclusion………………………………………………………………………………………………………………………………10 Bibliography…………………………………………………………………………………………………………………………….11 Introduction This paper deals with a case study of a tort on trespass and nuisance pitting Cornick (plaintiff) vs Le Gac (defendant). The plaintiff claims that the defendant trespassed on her airspace due to the hanging ladder beams. She further complains of nuisance from the site of construction bearing in mind she is sick and spends most of the time in the house. This paper will try to establish facts related to the tort. It will outline the claims which the plaintiff can seek from the defendant, in line with the law of trespass and nuisance. The analysis will draw examples from other related cases. The second case study is on health and safety at the work place. It evaluates a case of negligence by the employer and comes up with ways of avoiding deaths and injuries in the work place. Rationale In the tort case, Cornick-v-Le Gac 2003 JLR, trespass is deemed to have happened as the defendant did not alert the claimant of the construction. This contravenes the requirements of Access to Neighboring Land Act 1992, sec I, where notification is necessary (National Archives, 2011). The ladders from the scaffold hang on the plaintiff’s airspace which amounts to trespass. On the second account of nuisance, the claim that the noise was disturbing the plaintiff is not admissible as construction work is noisy, and it is virtually impossible to avoid this. This assertion by the defendant is supported by the Environmental Health standard team, which after its investigation on the matter, concluded that the defendant was acting in a reasonable manner. However, the aspect of the work being done during unsociable hours is relevant in this tort. Case Study 1 Question1: At what point does a breach of planning control occur? Identify this and explain the procedure that the defendant should or could take to help rectify the situation? A breach of planning control occurs when one carries out a development on a property/land without the relevant planning permission, or when one fails to comply with any of the conditions set out in the granted planning permission. It also occurs at the point where the development takes effect devoid of the necessary consent from the local council. Examples of this include; change of use of a building without planning permission, extensions on a building, displaying of advertisement board without acquiescence, also alteration to listed buildings without authorization. In this case, the breach of planning control occurred when the defendant through the contractor extended working hours into unsociable times such as weekends. In order to correct this problem, the defendant is supposed to ensure that work at the construction site is limited to the acceptable hours and days. Furthermore, the defendant should approach the plaintiff to settle the trespass action. This could be done through payment of damages in cash for the inconvenience caused by the hanging beams and the scaffold. The other instance of breach to planning is deemed to have occurred when the defendant set out to do substantial building works on his building, without consulting the local council. To rectify this, the defendant is supposed to make a retrospective application to the council where he will be allowed to explain his proposal properly to the Development Control Committee. Question 2: Name the authority that would have instructed the defendant that they are responsible to pay for the damages? In respect to the infringement of the plaintiff’s rights, there are two authorities who were supposed to inform the plaintiff and pay her damages. These are the Jersey Local Council and the Environmental Health Department. The council is the authority to which the defendant was supposed to seek the construction permission. It was supposed to put into consideration the aspect of the hanging ladders and scaffolds, and charge the relevant damages payable to the plaintiff. On the other hand, the construction needed the approval of the Environmental department. Despite the fact that the work involves a lot of noise pollution, there is a need for the defendant to exercise limitation on the noise directed towards his neighbor. Question 3: What are the implications of trespass, and how would this occur? Trespass is the legal concept where one intrudes on another person’s property with no permission. It occurs in many forms; when squatters invade a private/pubic property, a tenant occupies an abandoned house with a registered proprietor, nuisance caused by raves, intrusion into ones airspace, obstruction, damage to a neighbor’s property, noise, dust. In Cornick vs Le Gac case, trespass is supposed to have happened in the following ways: one, when the defendant constructed the scaffold with the hanging ladders that infringed into the plaintiff’s airspace, without seeking her permission. The second account of trespass is the nuisance caused by the construction especially on weekends. The plaintiff is on distress due to her sickness; hence, the noise causes unfathomable disturbances. There are several legal implications pertaining to trespass as outlined in the UK statutes such as the Criminal and Public Order Act 1994. One of the implications of trespass is litigation in a court of law. This occurs where the offended party feels that it has sufficient facts or a locus standi against a defendant. The implication of litigation comes in two forms- one is an award of damages to the plaintiff. In the case of Cornick vs Lee Gac JLR 2003, the plaintiff is entitled to damages on the trespass as a result of the erection of the scaffold. This derives its legal justification from the law of Jersey which imposes on neighbors not to use their properties in such a way to cause damage to each other.1 Cash damages entitled to the plaintiff arise from the hanging ladders and the scaffold and second, from the nuisance in the construction. On the other hand, the court might limit the number of working hours or even order the defendant to complete the works that require the scaffolding on a specified date. This would help to contain the effects that the scaffolding might be having on the plaintiff. Question 4: At all times did the defendant act in a reasonable manner? From the onset, the defendant did not act in a reasonable manner. He commences the construction without informing the plaintiff. The law requires that in order to have access to your neighbor’s property, there is a need for a written notification. This is intended to seek permission from the neighbor, although the notification is enforceable in a court of law in case the neighbor is adamant. As if this is not enough, the defendant, through his contractor, is unreasonable enough to carry out the work even on unsociable hours and times. The defendant justifies his unreasonable behavior by claiming that he never took the plaintiff seriously and thought that she was just a nuisance. If he was reasonable enough, he would have taken a step and visited the claimant to discus the matters at hand. Question 5: Why were monies not awarded to the plaintiff in respect of their complaint about the noise, and if this beach had occurred what would be the correct term? In seeking the damage on noise nuisance, the plaintiff had sought to have the defendant pay her damages amounting to the rental value of the premise for the period of construction. Her assertion was based on the premise that she might have incurred loss if the she had rent out the premises, and the tenant vacated in protest of the nuisance form the construction. The court however, ruled that the damages would be assessed according to its view of distress suffered by the plaintiff. The plaintiff was therefore, awarded fifteen hundred pounds. The judgment is based on the principle that there has to be a balance between the rights of neighbors in using their property. Therefore, these rights might cause a certain level of nuisance and discomfort to both parties. The health officer came in defense of the defendant when he claimed that he was adhering to the recommended levels of reasoning in terms of noise produced. If the court had been satisfied that the noise from the construction resulted in loss of rental revenue, then it would have awarded the plaintiff substantial damages. The damages would equal the actual amount of rent for the period that the construction was taking place. Question 6: If you were using a Standard form of contract, discuss its merits. A standard form of the contract is an essential document in any transaction or dealing which is entered between parties. It confers many benefits to parties in a contract/ deal/agreement. The contract requires offer and acceptance from the parties and a signed commitment to the terms. These terms contain penalties in case the contract is breached by either party. Therefore, it is easier for the courts to effect justice to rescue the affected parties in a contract of law case. Question 7: From the inception, how would have the defendant carried out his works. Consider presentation/viva The construction by the defendant involved serious issues on voisinage. These issues compel the defendant to act at all times, in such a way that he was considerate of the neighbor. He knew that the building works would involve construction of a scaffold which would hang on the airspace of the plaintiff. Despite the fact the law allows him to access her neighbors’ property, the same law gives preconditions. He would have written to the plaintiff informing her of the intended building works in his apartment. In the written document, he was to indicate the scaffold and ladders which would hang in the space of the plaintiff. This would have avoided the legal costs involved on trespass to the named property. On the other hand, building involves noise and air pollution. In as much the defendant has the right to the construction works, he is obliged by the visionage to be considerate of his sick neighbor. 2 The defendant would have acted wisely by paying a visit to the plaintiff a visit and discuss the noise issue. This would have resulted into a compromise, where the plaintiff, was to bear with the noise, on condition that the construction hours be limited to a certain level (for instance the standard and reasonable 8.00am to 5pm Monday to Friday, 9.00 am to 12pm on Saturday. Sunday would be termed as a non-working day). Question 8: Compare a case study similar to the one provided and contrast the events A similar case to Cornick v Le Gac 2003 JLR N [43] is the Du Feu V Granite Products (1973 JJ 2441). The two cases are similar in the sense that they are based on law of trespass and nuisance. However, the event to the two cases differs a bit. For instance, the plaintiff’s complaints differ in the two cases. In Cornick v Le Gac, the plaintiff complains of nuisance from noise in the construction on top of the hanging ladders of the scaffold. In the other case, the claimant seeks damages from the excess dust emanating from the defendant’s quarry, which was some 100 yards away from the plaintiff’s house). In terms of reference to law, the court in Du Feu v Granite Products, referred extensively to English law on private nuisance. While doing so, it veered off from applying the doctrine of voisinage, as did the court in Cornick v Le Gac case (Jersey Law Commission, 2010). Case Study 2 A) To avoid the tragic death of the employee above, what business operations could you put in place Business operation is an essential aspect of management as it enables the company to achieve value for its stakeholders. To achieve value for its stakeholders, CRFC Group needs to put in place a comprehensive safety and standard operation that puts all activities involved in production together, in a systematic way, without compromising the health and safety of employees. Once this is put in place, the company will be better placed to earn the loyalty of both the now safe employees and other stakeholders. This business operation will have a safety standard policy where the machine and appliance operators will be provided with manuals. The manuals complemented by signs in the work place will provide directions on how to respond to a situation and more so, to operate an appliance. It will also put in place a computerized system for activities to run concurrently without one compromising the other. This will act in such a way as to avert an instance where an employee is electrocuted by another unknowingly. If there was a system of communicating between the two ends, then the death would not have occurred in the first place. To make safety and standard operation, works effectively and achieve results. It has to be supported by the production and management operations. b: Which two acts/regulation was the CFRC Group in breach of? CFRC Group breached the Health and Safety at Work etc Act 1974, sec 2,3 and the Employment Rights Act 1996. For not installing systems for locking off the power, with only tapes, to specify which circuit can be switched on or off, CFRC Group exhibits negligence. Their negligence in failing to protect the safety of its employees contravenes section of the Health ad Safety at Work etc 1974 and section 44 the Employment Rights Act 1996 (National Archives, 2011). It has been alleged that the CFRC Group was overworking its employees resulting into fatigue and poor decision making. The Employment Rights Act compels the employers not to overwork their employees (sec, 47). It should adhere to the standardized working hours to ensure that the contractors are not fatigued as a result of working for many hours without rest. Conclusion The Cornick v Le Gac case is an indicator that it is not possible to balance the interest of neighbors in terms of their rights and entitlements. However, it points out the need for both parties to be considerate of each other’s welfare and rights. Parties are urged to respect the principle of voisinage which binds them into a quasi relationship. The second case study emphasizes the need for a company/business to put in place measure to ensure that the health, safety and welfare of its employees are enhanced at all times in the place of work. Bibliography Access to Neighboring Land Act 1992. London: National Archives. Available at http://www.legislation.gov.uk. Employment Rights Act 1996. (c.44). London: HMSO. The Jersey Law Commission. Voisinage: 2010. (Consultation Paper No.2.2010/CP). Jersey.JLC. Available: Read More