Nuisance and Trespass Law - Essay Example

? NUISANCE AND TRESPASS LAW The case between Harrington & Nephew Ltd and David family’s case on torts. In this case, the company has committed tortuous acts to David while David too is liable to the company for their tortuous actions. The paper will dissect the nature and extent of these tortuous actions and the remedies available to both parties. Private nuisance is the form is the tort in which ones right in the enjoyment of property is interfered with. It can either take the form of invasion or withdrawal or both (LaMance, n.d). What is important in the determination of private nuisance is the element of infringing the right of enjoyment of property. In nuisance, the interference must be indirect and may result into damages. Some of the nuisance cause here include dust, noise, lose of sleep, destruction of rose and interference with having rest in the family’s garden. Where nuisance has resulted into damages, proof will be easier for the plaintiff (Gearty, 1989). David’s quiet right of enjoyment of his property has been infringed by Advise Harrington & Nephew Ltd. In lodging a case against the company, David will have the obligation f proving that there was unreasonable interference in the enjoyment f his rights on his land. Because the land existing was bought by David and David occupied the same piece of land, he has the right to claim that the actions of the company interfered with his rights on the land. For private nuisance to be acceptable there must be an element of continuity (Pollock, n.d). A onetime interference with a neighbour does not constitute a nuisance. In this case, the company continued with their operation even during the night making their actions unreasonable. The noise from the company made David and his family fail to sleep at night. The court’s decision will therefore be similar to that of De Keyser’s Royal Hotel Ltd. v Spicer Brothers Ltd. (1914) in which Spicer brothers were held liable for the noise they mad making the hotel occupants lose their sleep at night. In addition the intent of the dependant’s play an important role I determining nuisance. In this case, Harrington & Nephew ltd had no malice against David. However, the company will still be liable for the damages arising out of noise, chemicals and dust because of the failure to care for their neighbours. Moreover, the nature of the neighbourhood will be relevant when coming up with the verdict. In this case, it is David who bought the land next to the company. However, this argument will be impotent in this case because of the nature of damage. Location is only considered to the limit of enjoyment of occupation and not injury to property (Darbyshire, 2010). Because the Rose that was a gift during the family’s wedding die, the nuisance caused injury to property. The chemical emissions from the company further damaged, Wally’s car that was parked outside the house. The case of Esson provides a precedent of the same. In addition, David was not an abnormal claimant as the noise, dust or smell would affect the enjoyment of rights of any normal person. The claimant would therefore succeed in this respect and the court could move ahead to issue an injunction. This will therefore not be relevant n this case. Defendant’s lack of care Harrington & Nephew Ltd failed to care about their neighbours during the production period. The company ought to have taken measures to reduce the impact of dust, noise and chemicals to their neighbours. In a similar case of Andrae V Selfridge (1938) the claimant who was a hotel owner recovered damage from the defendant who caused unnecessary noise and damage during demolition. Harrington & Nephew ltd could claim the following to reduce their liability for nuisance to David. Consent; the defendant can claim that the consent claimant was granted before the commission of the tortuous action. In this case, David’s consent was not sought making this defence irrelevant. Secondly, the defendant can claim that the action being complained about was authorised by a statute. The defence is also inapplicable in this case because of no law authorized the company to produce at night and cause the nuisance. Besides, the defendant can also rely on the fact that the action under complaint has occurred for a long period of time i.e. prescription. In addition Harrington & Nephew could also rely on the fact that they had taken action to abate the impact of their action in causing nuisance or that the nuisance was caused by unforeseeable stranger. Proof that action was not continuous can also be a defence. There are also a number of ineffective defences’ that the company could use. First, they could claim that the claimant came to the nuisance. This is no defence as was decided in the case of Miller v Jackson (1971) in which it was held that the defendant’s knowledge on the troubled area was no defence and the court prevented an injunction to bar payment of damages. The defendant could also argue that they had taken reasonable care to keep the interference minimal. Such an assertion would not hold water an influenced the decision of the court. The case of Raiper v London Tramway (1983) will reflect the decision of the case. Similar verdict would be upheld in this case in which the Harrington and Nephew Ltd ought not to have accepted a contract that would make them interfere with the peaceful enjoyment of their neighbours rights on land. Remedies The remedies to the aggrieved party in the case of nuisance is either damage or injunction. David is likely to be compensated for the loses realised. The company could be made to pay for the damaged vehicle, injury on the rose, and to pay for the medical bill paid to treat the allergy that was contracted by David wife. The court would therefore have to determine the damages in monetary terms and make the company compensate. The remedy of injunction could also be issued as an equitable remedy (Goldberg, n.d.) David could also sue Harrington & Nephew ltd under public nuisance. Public nuisance can be defined as the unlawful acts and omissions that jeopardise the safety, health and comfort of the public or a section from a common right. For instance if the dust, noise or chemicals affected a large number of people living next to the company, the act could be classified as public nuisance. For an individual to sue against a public nuisance, he/she has to prove that the he suffered loss or interference more than the other people. David could therefore succeed in such an allegation arguing that the fact that his compound is closer to the firm made them more vulnerable the dangerous emissions of the industry. A similar case of Rose v Miles (1815) entitled the defendant to special damages for loss of time and money because of he was obscured from transporting the barges using the creek. There are some differences between private and public nuisance. To begin with, public nuisance does not require proof of interest on land. Again, the claimant suffering special damages should affect the public at large. The defendant can also not claim that they have a right to commit public nuisance as offered in the private nuisance. The remedy to the plaintiff can be prosecution in case the case is lodged as a crime. David could also sue for injunction or damages for the wrongful actions of the company. Harrington and Nephew ltd can also sue David’s son, Wally for trespass. A person with a legal entry in the land of another can also constitute trespass by subsequently acts on the land i.e. refusal to leave the premises or committing some unlawful act while in the place. The difference between trespass and nuisance is that trespass must be direct as opposed to nuisance, which is his indirect interference in someone’s enjoyment of rights (LaMance, n.d). Most importantly, it is important to note that trespass is actionable per se i.e. without need to prove damage. Before bringing any action against trespass, the claimant needs to prove that he was in possession of the land even if the land does not belong to the possessor. It therefore implies that a lessor not in possession cannot sue against trespass. In this case, Harington & Nephew sue the David’s family for trespassing into the premises of the business and causing chaos. The secretary of the company can therefore institute a tortuous action against the David’s family for the direct interference in the enjoyment of her right in the company. Wally remained in the premise even after being ordered to walk away by the secretary who was in possession at that time. Remedies The major remedies in trespass case are injunctions and damages. These remedies are inadequate to restore the claimant possession on the land but a claimant out of possession has to bring an action to get back the land. In this case, Harrington & Nephew can require an action of ejectment. They can claim damages for the loses caused i.e. the breakages in the window and losses that could have arisen from a halt in work during the period of nuisance. David’s family will therefore pay for the cost incurred in repairing the property and the money used to buy the materials required to fix the breakages. Besides, Harrington and Nephew Ltd could also seek the remedy of an injunction to prevent any further trespass. An injunction prevents the claimant from future possible trespass that can be done by the defendant. Moreover, it should be realized that the company could claim both damages and injunction for the trespass. Defenses In trespass the defendant, can claim that he had the permission to enter the land. This defense will not be effective in the case since David’s son had no permission from those in possession of land. The second defense for trespass is the justification of law. There are instances that the law i.e. an access to neighbouring land so long as the trespass is reasonable. In summary, the verdict on a case of tort will depend on whether the elements of the tort are met. References Charlesworth & Percy on Negligence - 9780414047747 - SWEET & MAXWELL. (n.d.). Law Books - Sweet & Maxwell the Law Books and Law Journals Professionals. Retrieved April 16, 2012, from http://www.sweetandmaxwell.co.uk/Catalogue/ProductDetails.aspx?productid=497309&recordid=4647 Darbyshire, P (3rd ed.) 2010, English legal system in a nutshell, Sweet & Maxwell: London. Duxbury, R (8th ed.) 2009, Nutshells Contract, Sweet & Maxwell: London. Gearty, C 1989, The place of private nuisance in a modern law of tort, Cambridge Law Journal, 48(2), Retrieved April 10, 2012, from http://journals.cambridge.org/action/displayJourna... Goldberg, J. (n.d.). Journal of Tort Law . Home . Retrieved April 16, 2012, from http://www.degruyter.com/view/j/jtl LaMance, K (n.d.), Defenses to Trespass | LegalMatch Law Library, Find a Lawyer | Find an Attorney - Present Your Case to LegalMatch, Retrieved April 10, 2012, from http://www.legalmatch.com/law-library/article/defenses-to-trespass.html Pollock, F (n.d.), Online Library of Liberty - CHAPTER X.: NUISANCE. - The Law of Torts: A Treatise on the Principles of Obligations arising from Civil Wrongs in the Common Law (4th ed.), Online Library of Liberty - Front Page. Retrieved April 10, 2012, from http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=2123&chapter=165076&layout=html&Itemid=27 Read More