Law of Torts: Private Nuisance - Essay Example

Law of Torts Private Nuisance Introduction “A private nuisance is simply a violation of ones use of quiet enjoyment of land. It doesnt include trespass” (Restatement, 1979). It is an intrusion with an individual’s delight and usage of his land. The law distinguishes that landholders, or those in lawful ownership of land, have the power to the undamaged state of the property and to sensible solace and ease in its occupancy. Private nuisances entail harm to the lands of the complainant of his use of the ownership of such lands. Blackstone describes a private nuisance as "anything done to the hurt or annoyance of the lands, tenements, or hereditaments of another." The forms of private nuisances are almost countless, thus resulting in the impossibility of any kind of classification (Putney, 1908). Who Can Sue in Private Nuisance A person who owns a proprietorship interest in the land in which nuisance is inflicted can sue and succeed to claims. For instance the person must be an owner or a party, or be in special custody or occupation of it like tenant or under a licence to reside. Exceptions to the above rule may also be present as in the case of Hunter v Canary Wharf.1 The case of Malone v Laskey2 is an exception of the rule that a licensee can sue. In the mentioned case when the wife of the licensee used the toilet a cistern fell on her head due to the trembling of machinery in the nearby property and she was hurt. But when she claimed it failed because her husband was only a licensee and so it could not be proved that she held a proprietary interest in the land herself. But had this case been occurred now she would have succeeded under negligence. But an exception to this is that the wife of a home owner can sue since she also has a beneficial interest in the matrimonial home Hunter v Canary Wharf. Actually according to law jus tertii meaning right of a third person, is not a good defence to sue in a private nuisance. But if a person is in exclusive possession of the land can sue even if title to it cannot be proved Foster v Warblington.3 Till very lately it was resolved, that the complainant must have an interest in the land so that he could sue in private nuisance. But then in the case of Khorasandijian v. Bush4 it was in particular affirmed that it was no longer suitable to restrict the right to sue by indication to proprietary interest in the land. In this case Lord Dillon said the following…”it is ridiculous if in this present age the law that is the making of deliberately harassing and pestering phone calls to a person is only actionable in the civil courts if a recipient of the calls happens to have a freehold or a leashed proprietary interest in the premises in which he or she has received the calls.” Thus it was remarked that holding the right to sue would induce trouble. Sometimes it may so happen that the owner may not be willing to sue for nuisance because it may not be a nuisance to him but at the same time it may not be the same for his family members. Such a situation may not arise but then it at the same time does not validate a deviation from principle. As Lord Simonds in Read v. J. Lyons & Co. Ltd5 (page 183) remarked: "For if a man commits a legal nuisance it is no answer to his injured neighbour that he took the utmost care not to commit it. There the liability is strict, and there he alone has a lawful claim who has suffered an invasion of some proprietary or other interest in land." In reality the complainant who has sufficient interest in the land can sue. But what is sufficient interest nevertheless, is not free from doubt. Even as landholders and leaseholders in possession may surely sue, there is uncertainty as to the claim of certain licensees, like the members of the family of the landholders and leaseholders. In a latest case Deuon Lumber Co Ltd u MacNeill,6 the New Brunswick Court of Appeal adjudged, by a mass, that the children of a landholder who had been unfavorably impacted by dust from the defendant’s neighboring cedar mill were titled to sue in private nuisance, for “even though the children lacked any legal title to the property, they had a right of occupation sufficient to support an action on their behalf for damages for any unreasonable and substantial interference with their lawful use or enjoyment of the family residence”7 ( Kodilinye, 1989, p.284). Part B. Introduction English law does not agree to the principle that “a subject should be indemnified for loss sustained by invalid administrative action”.8 Such action only will not be valid to claim for any damages.9 Thus if any damages has to be claimed then it has to be based on the private law cause of action like negligence. Negligence is a legal conception that is normally utilised to obtain compensation for wounds suffered or accidents met. It is a civil mistake and is actionable under tort law. Negligence calls for acting in a way that misses the lawfulness of defending other people against predictable risks. Under common law if a claim for negligence has to be made then it has to satisfy the elements of negligence. A duty of care should be evident and breach of such a duty is a must to be liable for negligence in tort Donoghue v. Stevenson.10 Also it has to be proved that the effects of the defendants act were fairly anticipated. In the problem Dorothy when she bought the house was informed by her surveyor’s report that the roofs of Numbers 4 and 6 needed structural repair. But she never felt that she could afford the necessary work to repair the roofs. This makes her liable as she breached her duty to care. A negligence tort is the failure of an individual to practice sensible care to defend against both dangers that were acknowledged to cause potential harm, as well as those which an individual should know would produce an irrational risk of harm to third parties. In order to dominate in a negligence tort action, a plaintiff must demonstrate, by a prevalence of the proof, that the defendant was negligent, or betrayed to practice due care in the considerations. A plaintiff must also prove that the defendants negligence induced his wounds, and that he has endured injuries or discoverable damages as a result. Physical harm to the claimant’s person or property plainly establishes unjust damage for negligence intentions, though the limits of the construct of physical damage are not always clear.11 In England the more current case of Caparo v. Dickman12 inserted a threefold test for a duty of care. It was declared in the case that harm must be (1) Reasonably foreseeable (2) There must be a relationship of proximity between the plaintiff and defendant and (3) It must be fair, just and reasonable Only if the above three elements are present then failure of duty of care arises and the defendant can be made liable. On the other hand, these act as rules of thumb for the courts in demonstrating a duty of care; much of the rationale is still at the prudence of judges. That injury is a component of the tort of negligence is not doubtful: unjust injury finishes the reason of action, thus time becomes the victim for limitation purposes only from the instant it takes place.13 But it is strange that this crucial component of liability in negligence is ignored. Matters pertaining to actionable damage are regularly returned as queries of duty or causation, and significant annexes of the classes of actionable damage take place with little or no study or even recognition of the fact.14 At times, the act itself ascertains negligence. Under the doctrine of res ipsa loquitur, (Latin term for "the thing speaks for itself"), there are some events so clearly negligent that the law assumes negligence. For example “when a surgeon operates on the wrong side of the body, and the defendant, in such cases, must prove that he wasnt negligent.” Similarly in this problem Dorothy was also negligent. Her act or negligence was visible. She was warned by her realtors that the roof needs some repair works but Dorothy was negligent as she did not want to spend money. Thus her breach of duty makes her liable for the injury which was caused by the falling of the roof. She is liable for the injury caused to Police Constable Plod, on his beat, passing Number 4 because The front doors of all three houses open straight out onto the pavement of the highway and their eaves slightly overhang it which resulted in the PC crossing number 4 without being aware of the danger that might be caused by the falling of the roof. Bibliography 1. Albert, Putney, H. 1908. “Popular Law Library Vol4 Torts, Damages, Domestic Relations.” Cree Publishing Company 2. Cane, P. 1997. “What a nuisance” 113 Law Quarterly Review 515 3. Deakin, Simon et. al. 2003. Markesinis and Deakins Tort Law. Oxford: Oxford University press. 4. Ernest, Weinrib, J. 2003. “Tort law: cases and materials.” Emond Montgomery Publication 5. Gilbert, Kodilinye.2003 “Commonwealth Caribbean tort law.” Routledge Cavendish. 6. Gilbert, Kodilinye. 1989. “Standing to sue in private nuisance.” Journal of Legal studies. 9, (3): pp. 284-290. 7. Joseph, Asbury, Joyce and Howard, Clifford, Joyce. 1906. “Treatise on the law governing nuisances: with particular reference to its application to modern conditions and covering the entire law relating to public and private nuisances, including statutory and municipal powers and remedies, legal and equitable.” M. Bender & Co. 8. Kötz, H. & Zweigert, P. 1998. 3rd Ed. An Introduction to Comparative Law: Oxford: Clarendon Press. 9. Murdoch, John. 1999. “Real estate industry.” Reed Business Information Ltd. 10. Osborne, P., 2000. The Law of Torts. Toronto: Irwin Press. 11. Restatement (Second) of Torts § 821D, 1979 12. Rogers, W., Winfield and Jolowicz. 2006. “On Tort”. 17th Ed. London: Sweet & Maxwell. 13. Stapleton, J. 1988. “The Gist of Negligence.” 104 LQR 213, 389; Read More