Definition of a Private Nuisance - Coursework Example

?Question Private Nuisance Winfield’s definition of private nuisance as the unlawful interference with a person’s use or enjoyment of land or some right over or in connection with it1, captures the common law development of the tort of private nuisance. Professor Winfield’s definition of private nuisance is broad enough to cover an indefinite category of interferences with another’s use or enjoyment of land or rights in connection with it. In fact, Gearty describes the development of the tort of private nuisance as becoming increasingly “confusing”.2 However, an examination of developments at common law suggest that the courts have attempted to qualify the definition of private nuisance so as to ensure against too broad an application of liability for private nuisance. Nevertheless, Gearty reports, an action in private nuisance now covers a wide array of malfeasances such as “smelly oil depots, noisy speedboats” as well as “dangerous natural hazards” and can even cover using one’s premises “for prostitution.3 It therefore follows that the manner in which an individual uses his/her own land can interfere with another’s enjoyment of his/her land. Loyd LJ reflects the essence of these developments in the tort of private nuisance and Professor Winfield’s definition of private nuisance.4 In this regard, Lloyd LJ identified three specific kinds of private nuisances. First a private nuisance exists when a neighbour’s land is encroached upon. Secondly, a private nuisance occurs with a neighbour’s land sustains physical damages directly and finally, private nuisance occurs when the quiet enjoyment of the neighbour’s land is interfered with.5 It would appear that the first definition of private nuisance is essentially the same as the third definition. However, a closer examination the use of the term “quiet enjoyment” takes the definition of private nuisance a bit farther and ensures that noise pollution can be captured by its definition. Therefore, Professor Winfield’s definition of the tort of private nuisance finds currency in the common law. Despite its broad definition as reflected by Professor Winfield and essentially repeated by Lloyd LJ, the common law has attempted to set some parameters for sustaining an action in private nuisance. To begin with, in order to successfully claim damages for private nuisance, the harm must be reasonably foreseeable.6 The requirement of reasonably foreseeable damages effectively replaces the previously available defence of natural use of the land as expressed in Rylands v Fletcher.7 Rylands established that in the event an individual makes unnatural use of his land and that unnatural use results in an escape that is likely to cause harm, and no steps are taken to circumvent that escape, liability will exist for any damages that are natural consequences of that escape.8 Rylands therefore implies that the natural use of one’s land may not give rise to liability for private nuisance or nuisance generally. Cambridge Water v Eastern Counties Leather however, changes this defence by insisting that the resulting harm must merely be reasonably foreseeable. Brearly explains that the natural user defence was significant for preventing a floodgates of nuisance claims. However, the natural user defence was “intrinsically flawed” in that it could conceivably render ensuing harm from the natural use of one’s land incapable of recovery.9 Therefore the requirement that the harm itself is reasonably foreseeable falls more comfortably under the definition of private nuisance and ensures that interference in the private use of one’s land should not only result in harm, but that harm should be reasonably foreseeable. This requirement is more likely to balance the rights of the neighbour’s use of his land and the defendant’s use of his own land. The unnatural and natural use of one’s land does not always result in harm or interference in one’s neighbour’s use of his/her land. Interference with one’s enjoyment of the use of one’s land is also clarified and restricted by the common law so as to make Professor Winfield’s definition somewhat narrower than it appears. For instance, it has been firmly established by the courts that the interference must be continuous.10 However, there have been occasions where a one-time act constituting nuisance resulted in damages of a sustained type permitted a claim a damages. For instance in Crown River Cruises v Kimbolton Fireworks the court ruled that fireworks that resulted in at least 15 minutes of flammable debris landing on neighbouring property would inevitably cause the fire that ensued.11 Essentially, Professor Winfield’s definition of private nuisance appears to suggest that mere interference is sufficient to substantiate a claim for damages. However, further restrictions are found on the principle of sic utere tuo ut alienum non laedas which means “so use your property as not to injure your neighbours.”12 Therefore by implication, the interference must be unreasonable or unlawful. This implication is borne out by Lord Goff’s contention that the guiding principle is that of a “reasonable user” and more especially there must be some element of “give and take” between occupiers of neighbouring property.13 The infusion of the reasonableness standard challenges the broad definition of private nuisance offered by Professor Winfield. Even the reasonableness standard is subject to further evaluation. For instance the courts will take a number of factors into account, suggesting that the reasonableness test is both objective and subjective. In Sturges v Bridgmen the court taking the subjective approach, ruled that the locality is relevant when determining whether a user is reasonable. The fact is, what would be a nuisance in one area may not be a nuisance in another.14 In Robinson v Kilvert [1889] 41 Ch. D. 88 the court took an objective approach to the reasonableness standard and ruled that the neighbour’s tolerance level would be judged according to what should be expected of an ordinary neighbour.15 It would also not be unreasonable or unlawful interference should the defendant’s conduct be such that it is of use to the larger community. For instance construction work conducted during the day would not constitute unlawful or unreasonable interference.16 It therefore follows that Professor Winfield’s definition of private nuisance must be read together with the principles established by common law, otherwise Professor Winfield’s definition would suggest that mere interference would suffice to substantiate a claim for damages in private nuisance. Question 2: The Tort of Negligence and Res Ipsa Loquitur. The fundamental principles of the tort of negligence are founded on the House of Lords’ ruling in Donaghue v Stevenson.17The Donoghue case establishes that the individual must take steps to avoid acts or omissions that can reasonably be foreseen to cause harm to his/her neighbour.18 In formulating the neighbour principle as the foundation of the tort of negligence, Lord Atkins explained that one’s neighbour is: Persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omission which are called in question.19 Therefore the tort of negligence imposes upon the individual a duty of care when acting or omitting to act, to avoid or mitigate against the risk of harm to persons within our reasonable contemplation. Proximity, is essentially a major factor in terms of the duty of care arising under the tort of negligence. In fact the proximity principle was aligned with the term neighbour in Anns v Merton London Borough Council [1978] AC 728.20 Building on the ruling in Dongohue, the courts have established that the tort of negligence is constructed around three primary elements. First, there must be a neighbour or relationship of such proximity that the defendant can be assumed to reasonably foresee that his conduct or omissions will have some consequences for the plaintiff. In such a case a duty of care arises. Secondly, the defendant must have breached that duty by failing to take reasonable care. Thirdly, the acts or omissions of the defendant must have resulted in reasonably foreseen damages to the plaintiff.21 The doctrine of res ipsa loquitur (the thing speaks for itself) appears at first glance to depart from the requirement of proof of negligence within the parameters defined above. However, the doctrine merely shifts the burden of proof to the defendant to prove that negligence did not exist. This shifting of the burden arises when an act or omission is obviously negligent but the plaintiff cannot prove that the defendant was negligent. By permitting the burden of proof to shift, the doctrine of res ipsa loquitur takes the position that the presumption of negligence is not a foregone conclusion, but rather that the presumption is rebuttable.22 The doctrine of res ipsa loquitur was established in the early case of Christie v Griggs (1809). In this case the court permitted the burden of proof to shift to the defendant on the basis that in a number of accidents it is not possible for the plaintiff to have access to the requisite evidence.23 In referring to the ruling in Christie, Johnson explains the rationale for the introduction of the doctrine of res ipsa loquitur. According to Johnson, the court’s decision to establish the doctrine was to ensure that: A legal recovery on account of injury should not be barred by lack of proof when the defendant has better knowledge or access to knowledge regarding the cause of the accident.24 The doctrine of res ipsa loquitur was used by the Judicial Committee of the Privy Council in George v Eagle Air Services Ltd. [2009] UKHL 21 for the benefit of a widow whose husband died in an aircraft crash in the Caribbean. The cause of the crash had been attributed to pilot error and negligence was denied. The Privy Council ruled however, that in the absence of an explanation for the crash, something the plaintiff could not be aware of, negligence would automatically be assumed.25 Williams argues that although it is regrettable that the Privy Council did not offer any guidelines as to when or how the doctrine of res ipsa loquitur can be applied to infer negligence under the law of tort, the George case did in fact establish an important principle of negligence in tort.26 Essentially, the George case establishes, or at the very least confirms that the doctrine of res ipsa loquitur is necessary for policy reasons and justifies recovery for victims in cases where knowledge of the requisite facts are imbalanced and legitimately puts pressure on the defendant who is in a superior position to know what caused the harm or the accident resulting in the harm.27 The doctrine of res ipsa loquitur therefore co-exist with the tort of negligence in that while negligence generally depends on proof a breach of the duty of care, res ipsa loquitur will bypass these requirements and infer negligence. However, the defendant is at liberty to offer proof rebutting the inference. Question 3 A. Trespass to Property Without permission to have a picnic on the neighbour’s unused vacant lot, a trespass under the law of tort is committed. As Harpwood explains, the tort of trespass to property is established upon: …directly entering upon land, or remaining upon land, or placing or projecting any object upon land in the possession of the claimant, in each case without lawful justification.28 The fact that the land is vacant and unused will not amount to lawful justification since lawful justification typically means authorization by the owner or occupier of the land.29 Moreover, it was held in Jones v University of Warwick [2003] EWCA Civ 151, that as a result of the right to privacy under Article 8 of the European Convention on Human Rights, entry to the property of another without the requisite permission amounts to a trespass.30 The fact that it might be perceived that because the land is vacant and unused, the neighbour will have no objection to the picnic is irrelevant. The defendant’s perceptions and state of mind is not a matter to be taken into consideration. The defendant will be liable despite that fact that he/she was not negligent.31 In other words, just because the land is vacant and unused and the defendants believe that as a result of these factors, the neighbour would not object to the picnic would not make any difference to a claim in trespass. Having a picnic on the land leaves little doubt that there is trespass. Trespass to land is established by any degree of entry to the land. In fact merely positioning a ladder against a wall will amount to trespass if the owner objects.32 Having a picnic on the neighbour’s unused vacant property will amount to a trespass in two different ways. It will not only be a trespass by entry, it will also be a trespass by placing objects on the property. Presumably, the picnic involves the consumption of food and drink. It was held in Jones v Stones [1999] 1 WLR 1739 that the mere positioning of flowerpots and an oil tank on a wall that marked a boundary constituted the tort of trespass.33 Since a picnic is hardly a reason justifying entry to the neighbour’s land, it is unlikely that the defendant will have a defence or a lawful excuse for entry without the neighbour’s permission. Aside from obtaining permission, the only lawful or justifiable excuses for gaining entry to the property of another are common rights of law entry, justification by law, necessity and jus tertii.34 Common law rights permit entry to the land of others in specific circumstances. For instance entry may be permitted to “abate a nuisance”.35 Entering land for the purpose of having a picnic does not appear to fall under the common law right of entry. Necessity provides a defence, but will likely only arise in cases where life or limb is at risk.36 It goes without saying that having a picnic on the property of another is hardly a matter that constitutes a defence to life or property. Likewise, the defence of jus tertii arises when the defendant can substantiate a claim that the plaintiff does not have possession of the land and that the land is instead possessed by another, such as a tenant.37 The defence of jus tertii does not arise in this case, because there is a belief that the property is unused and vacant. There is no presumption that the property is in the possession of another. The only defence available would be if the defendants regularly entered the property for the purpose of having a picnic and there was no objection from the neighbour. In such a case it would be implied that the defendants had an implied license to have picnics on the property.38 Even so, it would be prudent to obtain the neighbour’s permission, because even in cases where the parties have the plaintiffs express permission to enter their property, that permission can be withdrawn at will.39 In all the circumstances it would appear that having a picnic on the neighbour’s land without the neighbour’s permission constitute the tort of trespass to property. It is irrelevant that the neighbour’s property is unused and vacant. The right to privacy in one’s property and possessions under Article 8 of the European Convention on Human Rights appears to be a major factor. The importance of Article 8 can be inferred from the limited defences to entry and the fact that entry must be lawful or justified. Question 3 B. Trespass to the Person David’s case falls under the torts of trespass to the person. Essentially the conduct of the security guards at Argos Supermarkets amounts to direct interference with David’s person and liberty. However, it would appear from the words of Diplock J. in Fowler v Lanning [1959] 1 WLR 124 that David will have to prove that the trespass was either intentional or was a result of negligence. Lord Diplock said: Trespass to the person does not lie if the injury to the claimant, although the direct consequence of the act of the defendant, was caused unintentionally and without negligence on the defendant’s part.40 The facts reveal that the security guards at Argos Supermarkets were unaware of the discussion that took place between the owner and David. There were therefore unaware that David had express permission to take products from the store without paying for them. Therefore they can hardly be said to have been acting intentionally in committing trespass to David’s person. Similarly, they were only doing their jobs as they should have if they suspected someone had stolen property from the supermarket. Therefore they can hardly be said to have been acting negligently. It was the owner’s negligence that gave rise to the security guards’ conduct. Therefore David may have a claim in trespass against the owner of Argos Supermarket under the principles of vicarious liability. Vicarious liability holds principles liable for the torts committed by their agents.41 As a result the owner of Argos Supermarket who was negligent in failing to inform the security guard of his gift to David, is responsible for the torts of trespass and defamation committed by his agents. Each of the three torts of trespass to the person were arguably committed in this case: assault, battery and false imprisonment.42 Although, assault does not involve an actual physical attack, it is typically committed in conjunction with battery and involves putting the plaintiff in immediate fear of an attack.43 David was called a thief in a situation where there were arguments and he was outnumbered. Moreover, he was in close contact with the security guards. There must be proof that David was reasonably expecting an immediate battery.44 The fact that David was pushed immediately after being called a thief would tend to function as proof that the security guard’s demeanour would have been such as to put David in fear of an immediate battery. Battery is far more obvious in this case as David was pushed by one of the security guards. It involves direct physical contact. Any touching, however slight will constitute battery, provided it is done in anger.45 The security guard was clearly angry in that he called David a thief just before pushing him. The mere fact of pushing him during the course of an argument will also be sufficient to substantiate the claim that the security guard pushed David in anger therefore committing the tort of trespass to the person by virtue of battery. Battery can also be substantiated if the touching is hostile.46 It therefore follows, that even if the security guard was not angry, there is little doubt that the situation was hostile as there was an argument and the security guard called David a thief just prior to pushing him. It is the integrity of the individual that is protected rather than the degree of physical force used. This is demonstrated by the kinds of touching that have amounted to the tort of battery. For example, in Pursell v Horn, a plaintiff was successful in a claim of battery where the defendant threw water on the plaintiff.47 In Nash v Sheen, the plaintiff received a tone rinse rather than the perm she requested and was successful in her claim of battery.48 Based on these cases, David will have a good claim in battery. The tort of false imprisonment under trespass against the person will also be relatively easy for David to prove. David appears to have suffered the most serious forms of false imprisonment. As Harpwood explains: Some of the most serious examples of false imprisonment in recent years have involved the detention of people for questioning in respect of crimes which they did not commit.49 David was certainly detained in that he was locked up in the store and only released after several hours. On the facts David was not free to leave until he was released. According to Harpwood, “any act which prevents free movement” constitutes false imprisonment.50 Merely cordoning of an area is sufficient to constitute false imprisonment.51 There is no doubt that David was restrained in that he was not free to go. The restraint is required to be total so that there are no reasonable opportunities for the plaintiff to escape.52 The restraint of David was total. On the facts of the case for discussion David was locked up, leaving no doubt that he had not reasonable opportunities to escape. Moreover, he was released after a few hours, suggesting that for the duration of his lock-up, he could not have escaped. That fact that he was released is highly suggestive of total restraint. Moreover, the fact that David was released a couple of hours later will not be fatal to a claim in false imprisonment. It was held in Holden v Chief Constable of Lancashire, that restraint for a minimal period of time will constitute false imprisonment.53 Based on the authorities discussed, David has a claim in trespass to the person. His claims are specifically for assault and battery and false imprisonment. However, his claim for assault is not as strong as his claims for battery and false imprisonment. Since there was an actual battery, he might be able to substantiate a claim for assault. However, if he were to claim assault without battery, there it is very likely that he would fail. Since the security guards did not act with negligence or unintentionally, David is advised to take action against the owner of the supermarket since it was his negligence in failing to inform his security guards that led to David’s assault and battery and false imprisonment. Bibliography Textbooks Hamilton, M. and Spiro, G. The Dynamics of Law. (M.E. Sharpe 2008). Harlow, C. Understanding Tort Law. (Sweet and Maxwell 2008). Harpwood, V. Modern Tort Law. (Taylor and Francis, 2008). Madden, M. Exploring Tort Law. (Cambridge University Press 2008). Rogers, W.H.; Winfield, P. H. and Jolowicz, J.A. Winfield and Jolowicz on Tort. (Sweet and Maxwell 2010, 18the Edition). Articles/Journals Brearley, J. S. ‘Public Welfare v “Natural Use” of Land as the Basis for Liability in Environmental Damages Cases: Some Perspectives on the Past and Possible Future Roles of Tortious Remedies.’ (1995)7(2) Journal of Environmental Law,119-136. Gearty, C. ‘The Place of Private Nuisance in a Modern Law of Torts’. (1989)48(2) Cambridge Law Journal, 214-242. Johnson, M. ‘Rolling the “Barrel” a Little Further: Allowing Res Ipsa Loquitur To Assist in Proving Strict Liability in Tort Manufacturing Defects.’ (1997) 38(3) William and Mary Law Review, 1197-1255. Williams, K. ‘Res Ipsa Loquitur Still Speaks.’ (2009) 125 Law Quarterly Review, 567-570. Table of Cases Anns v Merton London Borough Council [1978] AC 728. Austin and Another v Commissioner of Police for the Metropolis [2007] EWCA Civ 989. Bird v Jones [1848] 7 QB 742. Cambridge Water v Eastern Counties Leather [1994] 1 All ER 53. Christie v Griggs [1809] 170 Eng. Rep. 1088. Cole v Turner [1704] 6 Mod 149. Crown River Cruises v Kimbolton Fireworks [1996] 2 Lloyd’s Rep 533. De Keyser’s Royal Hotel v Spicer Bros Ltd. [1914] 30 TLR 257. Doe d Carter v Barnard [1849] 13 QB 945. Donoghue v Stevenson [1932] AC 562. Fowler v Lanning [1959] 1 WLR 124. George v Eagle Air Services Ltd. [2009] UKHL 21. Harrison v Southwark Water Co. [1891] 2 Ch. D. 409. Holden v Chief Constable of Lancashire [1987] QB 380. Hunter v Canary Wharf [1997] 2 All ER 426. Jones v Stones [1999] 1 WLR 1739. Jones v University of Warwick [2003] EWCA Civ 151. Nash v Sheen [1953] CLY 3726. Pursell v Horn [1838] 8 A & E 602. Rigby v Chief Constable of Northamptonshire [1985] 2 All ER 985. Robinson v Kilvert [1889] 41 Ch. D. 88. Rylands v Fletcher [1866] LR 1 EX 265. Stephens v Myers [1830]4 C&P 349. Sturges v Bridgmen [1879] 11 Ch. D. 852. Westripp v Baldock [1938] 2 All ER 799. Wilkinson v Downton [1897] 2 QB 57. Wilson v Pringle [1986] 2 All ER 440. Wood v Leadbitter [1845] 13 M & W 838. Read More