The Law of TORT - Essay Example

The Law of TORT Tracy, an eight year old girl had entered the site with her friends. She had done this on several occasions in the past. Hence, the contractors should have taken necessary precautions to restrict the entry of young children who were habituated to coming there. Due to their negligence, she sustained grievous injuries after falling down from above. As it was held in the case of Harris v Birkenhead Corpn the contractors were liable for their breach of the duty of care. Moreover, they were liable for not taking proper steps to ensure the safety of these children, because they knew that these premises were being used as place for playing by these children. It was held in British Railways Board v. Herrington, that occupiers will be under an obligation towards a duty of ‘common humanity,’ to trespassers; subsequently it was reiterated by Section 1(1)(a) Occupiers Liability Act 1984 Section 2(4)(a) Occupiers Liability Act 1984,states that a mere warning without any fencing is not a sufficient measure that ensures the safety of the visitors. Section 2 (3) (a) of the Act provides that the occupier must be prepared for children to be less careful than adults. In Harris v Birkenhead Corporation (1976), Harris a child aged four years fell from the upper window of an abandoned and damaged house and sustained severe injuries. The abandoned house had neither been demolished by the Council nor had it any warning boards been displayed by it. Further, the Council had failed to secure the doors and windows till such time as the building was to be demolished. The Court of Appeal held that the house constituted a hazardous and enticing place for young children and that the negligence of the Council in adopting adequate precautionary measures, made it culpable for the death of the child. The Court directed the occupiers of lands and houses to take into account acts of trespass on their property, the various types of trespassers, the extent and seriousness of the danger involved due to such trespass and whether the danger was concealed1. Subsequently, the case of British Railways Board v Herrington enlarged the scope of the duty owed to a trespasser by including the duty of common humanity. In this case a six – year old child intruded on railway premises by going through a hole in the fence from an adjacent children’s play ground. The child went to an electrified railway line and was electrocuted there. Several incidents of the fence having been broken at several places had been taking place. It was well established that the railway authorities had knowledge of the same and that they were well aware of the fact that children often intruded through the holes from the nearby playground. In spite of this, they had not taken any measures to prevent trespass by children. The Court held that the railway authorities were responsible for the electrocution of the child as they owed a common duty of humanity. The court further held that occupiers of property were expected to act in a humane manner with regard to trespassers, on the basis of their own knowledge, ability and resources2. The Occupier’s Liability Act 1957 had not accorded sufficient importance to the duty of humanity. The duty of humanity requires the occupier to initiate appropriate measures in order to prevent intruders from known dangers and to avert personal injuries. The occupant was not required to inspect the premises for possible dangers. In Pannett v McGuinness, the defendants were demolition contractors and were burning rubbish on the site. The defendants engaged three workmen to supervise the fire and prevent children from entering these premises. While the workmen were away from the site, Pannet, a child aged five years, entered the premises and fell into the fire. It was a fact that the child was a trespasser and the evidence revealed that on several occasions, children had intruded upon the premises and had been chased away. The court held that the defendants were culpable because they had failed to take appropriate steps to prevent children from entering their premises, despite knowing that children were about to enter their premises3. Issues hindering the exercise of public rights or public health, safety and convenience comprise misuse or interference. In order to seek a redressal action in tort, claimants have to establish that they suffered damage over and above what had been suffered by the public at large. In Attorney General v. PYA Quarries, the Attorney General initiated an action for an injunction to prevent the detonation of explosives by the defendants. These detonations were creating dust, noise and shock waves thereby causing considerable nuisance to the public. An appeal was lodged by the owners of the quarry wherein they contended that blasting constituted a private nuisance and public nuisance. The court dismissed the appeal because any nuisance constituted a public nuisance it affected the comfort of at least a dozen of Her Majesty’s subjects4. Despite the fact that a nuisance may constitute a public nuisance, a third party whose legitimate rights, regarding a specific property were hampered, can initiate a private action. This concept was established in the case of Rose v Miles, in this case the court held that the defendant was liable for the damages resulting from the obstruction of a riparian passage5. Nuisance may be public, private or both and it need not be continuous. Even an occasional nuisance can be prosecuted. People are liable to face legal action if they adopt nuisance or create nuisance. In Attorney General v. Tod – Heatley, a piece of unused land was owned by the defendants. People used to dump rubbish on the land and there was a hoarding that described the land as being a dumping ground for dead dogs and cats, vegetable refuse, fish, offal, rubbish and all kinds of filth. The court considered this to be a health hazard and issued an injunction order that prevented further dumping6. Therefore, the owners of neighbouring properties and tenants can file a case of public nuisance before the court seeking an injunction from it. Moreover, the nearby house owners can seek redressal on the basis of private nuisance affecting the enjoyment of their properties. Bibliography 1. Attorney General v PYA Quarries (1957) 2 QB 169. 2. Attorney General v Tod-Heatley (1897) 1 Ch 560. 3. British Railways Board v Herrington (1972) AC 877. 4. HARRIS v BIRKENHEAD CORPORATION (1976) 1 WLR 279 (CA). 5. Pannett v. McGuinness & Co. Ltd. [1972] 3 All E.R. 137 6. Rose v Miles [1815] 4 M&S 101 Read More