You are on page 1of 31

AN OVERVIEW OF TORT LAW 2009-2010

The purpose of this overview is to help guide your revision. It is not intended to
replace, and should be read alongside, your lecture notes, reading and tutorial
preparation. You should use the headings as a guide for your revision.

In Tort Law this year we have looked at the following:

The tort of negligence


o Duty (including psychiatric harm)
o Breach
o Causation
o Defences
Vicarious liability
The trespass to the person torts
o Assault
o Battery
o False Imprisonment
o The rule in Wilkinson v Downton
o The Protection from Harassment Act
The land torts
o Trespass to Land
o Private Nuisance

It is important when planning your revision that you revise these topics/torts in
their entirety. That is, you should not revise assault and battery, but not false
imprisonment, the rule in Wilkinson v Downton, the Protection from Harassment Act
and so on.

You should revise ALL of negligence you must be able to work through duty,
breach, causation and defences. A negligence problem question will require you to
discuss all aspects of a negligence claim (however briefly), even when it is focused
on a particular aspect of negligence say psychiatric harm or causation.

Vicarious liability may arise as a topic on its own but also in relation to other torts.
INTRODUCTION TO TORT LAW
1. WHAT IS TORT LAW?

What is a tort?
A tort is a civil wrong for which the law provides a remedy
The law of obligations
When does the law impose obligations on us?
What interests does tort law protect?

2. THE DISPARATE AIMS OF TORT

(Corrective) Justice
Providing Compensation
A Compensation Culture?
Deterrence
Inquiry and Publicity
THE TORT OF NEGLIGENCE

1. THE ELEMENTS OF THE TORT OF NEGLIGENCE


- Negligence imposes a duty of care if you fall below this duty of care then
you will be liable to the other person

Duty + Breach + (causation remoteness) Defences = the tort of negligence


- D must owe a duty of care; D must breach that duty; Ds breach caused the
loss to C; There are no applicable defences

2. DONOGHUE V STEVENSON [1932]


- Defendant and friend went to caf, ordered ginger beer. Manufacturer
claimed because D did not purchase the beer, he could not claim. Court held
claim was allowed.

The significance of Donoghue


- Donoghue is the authority for the proposition that manufacturers owe a duty of
care to those who ultimately consume their goods.
- It also exposed that fallacy that contractual relationships only arise between
purchaser and manufacturer. It extended the limit to include ultimate consumer.
-
The neighbour principle
- you must take reasonable care to avoid acts or omissions that could be seen to
affect your neighbour. (Lord Atkin). This includes anyone who is so closely and
directly affected by act that one ought to have reasonably considered them in
contemplation of act
3. THE POST-DONOGHUE EXPANSION OF NEGLIGENCE LIABILITY

From Anns to Murphy


- Anns v Merton LBC a block of maisonettes was built with inadequate foundation
- Must establish if there is a sufficient relationship of proximity; in such that in a
reasonable contemplation there would be a damage caused
- If the answer to the first part is yes, then is there any conditions which reduce the
limit or scope of liability
- Reasonable foresee ability of harm (RF) Policy factors (P) = duty of care

- Haley v London Electricity Board


- Electricity board had dug a trench and left a hammer as a warning; Blind person
walked by and not noticing the hammer fell into the trench and was rendered deaf;
Courts held it was reasonably foreseeable that a blind person could walk down and
fall in to the trench and held the electricity board liable.

- Hill v Chief Constable of South Yorkshire


- A serial killer murdered Hills daughter and she claimed the police owed her a duty
of care to conduct investigation with reasonable care, which would have prevented
this from happening. It was held that no duty existed as it would keep the police
second-guessing themselves and it would be detrimentally defensive.
4. DUTY THE CAPARO TESTS
Caparo v Dickman
- Caparo was buying shares of fidelity which it then started to accumulate
based on the report of audit by Dickman; when it finished purchasing a
large percentage of company they found the company was in a worse
state than was shown by Dickman and Board and tried to sue for the
difference between what they paid and actual value; HOL said it did not
pass the 3 stage test.
-
A new three-stage test
- is it reasonably foreseeable that if D fails to take reasonable care C may be
harmed?
- Is there a relationship of proximity between C and D?
- Is it fair, just and reasonable to impose on D a duty of care towards C?
-
Incremental and by analogy approach
- Courts should recognize a duty on a given set of facts only when it can find a
previous decision where a duty has been recognized in an analogous situation; in
such situations it may be justified to extend the duty of care incrementally to the
new situation
-
When are these test used?

Problems with the test


- what is the relationship between test factors? Do they all need to be satisfied?
- Three stage test doesnt do what legal tests usually do which is tell us what facts
need to be established for a given legal claim to arise
- The incremental approach is unjust and retrogressive
o This is because without a similar situation, your claim could fail just
because it was the first of its kind; not because it was lacking in merit
o
Application of the tests what factors for the courts take into account when
determining whether a duty of care exists
- most cases will involve a clear precedent

- March Rich v Bishop Rock Marine, The Nichols H


- Claimants ship was damaged and ship owners opted for temporary repairs so that
cargo could be delivered. It was examined by the classification society, which said
the repair was sufficient, but the ship sank a few days later and all the cargo was
lost. The court held that there was no duty of care owed
- this case had to be determined on its own features as there was no previous case
that held a society liable; instead they compared the various facts that might be
thought to impose a duty of care and which might point against it and then weighed
them against each other.
- For: clear foreseeability of harm and the fact that a duty would promote safety and
security of ship transport
- Against: if classification societies were held liable they would be discouraged from
doing their job in the future; all cargo is already insured by the shippers and cargo
owners so all costs will already be borne by insurance companies, but it would add
another person who has to take out insurance
- Overall there would have been an undesirable impact on society to rule in favor of
the claimants.

Courts may not enforce conduct when:


- acts/omissions: court is more willing to enforce acts than omissions
- nature of the harm: some actions are sufficient to warrant legal redress

- -Sutradhar v. Natural Environmental Research Council


-Claimant drank water from a well in Bangladesh which was surveyed by the British
research council and the claimant got arsenic poisoning. House of lords said that
they were not liable because they did not test for arsenic poisoning. They
determined that you cannot be liable for something you havent done only for
something you have done but done wrong.

- duty of care may be denied if it has a crushing liability on the defendant


- may also be denied if it has an undesirable impact on society
- also, if the court feels it can not rule on the situation a duty may be denied
(because they lack know how on the topic)

5. DUTY PSYCHIATRIC HARM

Why is a duty of care more difficult to establish here?


- a duty of care is more difficult to establish because there is no element of proof
- Psychiatric damage is an injury to a claimants state of mind through the shock
of what they perceive through their senses
- Note does not include mere grief, sorrow or distress
- There is concerns of a floodgate of claims which makes this a very particular
area of law in which you would have to prove your suffering
-
The primary and secondary victim distinction
- A primary victim is someone who is involved in the incident and whos physical
injury could be reasonably foreseeable, and has suffered as a result of the other
parties negligence
- A secondary victim is someone who has suffered without being exposed to the
danger
o Claimant must perceive a shocking event; it must be sudden and not
gradual; must be sufficiently proximate to the accident (as in Alcock); it
must be reasonably foreseeable that a person of reasonable fortitude
would suffer psychiatric harm
o
- McLoughin v OBrian
o Mrs. McLoughin came to the hospital to find that her husband had all been
seriously injured in a car accident; she arrived at the hospitals 2 hours
after the accident
o She encountered circumstances that were distressing in the extreme and
capable of producing an effect well beyond grief and sorrow
o Court ruled that she had come into the immediate aftermath of the
situation and was successful
o
- Alcock and Others v Chief Constable of South Yorkshire police
o Claimants included a group of secondary victims that had seen the
disaster on tv and had relatives who had suffered/died as a result of the
disaster.
o Court held that they could not claim as they were not proximal to the
disaster
o Part of this decision was a floodgate concern, and a possibility of a
crushing liability
o Alcock control mechanisms
The class of person whose claim should be recognized
The proximity of the claimant to the accident
The means by which the shock is caused

Particular issues in this area of law rescuers and unwilling participants


- White v CC of S York
o Claimants were all police officers who were on duty the day of the
Hillsborough Stadium disaster; all had suffered psychiatric illness as a
result of the events
o Court held that they could not claim because they were doing their jobs
-

6. BREACH
- D will be in breach of his duty of care when he falls below the standard of care
required by the law
- What does the law require us to do in order to avoid causing harm to others?
- How should the defendant have acted in the situation? What was the standard of
care that was required? Did the defendant fall below that standard of care?
-
The basic test of reasonableness the reasonable man
- The reasonable man is for example: a traveler on the London underground.
What is understood, that the reasonable person is neither all seeing nor all
knowing, and is allowed to make mistakes.
- Test can be said to be vague on the following counts; test is applied
retrospectively; it is based on facts of a case, not precedent;

Key questions: 1) How ought the defendant have behaved in the circumstances ie
what was the standard of care? and 2) did the defendant as a matter of fact fall
below the standard of care required?
The Objective Test
- What this means is that (except for in a very few, limited, circumstances) the
appropriate question is not what could this particular defendant have done? but
rather what level of care and skill did the activity the defendant was
undertaking require?
- The law (usually) imposes the same standard of care on everyone. D cannot
usually argue against, or raise as a defence in response to, the imposition of
liability on the grounds that they did their best according to their age,
education, experience, health and so on where their best falls below the
standard of care expected of the reasonable man.
- Nettleship v Weston
- C agreed to give family friend driving lessons; during one of the lessons, after
a turn D panicked and mounted a curb, breaking Cs kneecap; D was found to
be driving without care and attention;
- Court held that duty of care owed by all drivers was the same, whether
learners or experts; the standard of care is not dependent on the particular
characteristics of the individual

Modifications to this objective test children and common practice


- Modifications to the objective test occur for children
- Court has essentially created the reasonable child; in the given situation it
would be a comparable child of the same age, intelligence and experience
o The ordinary child
- Mullin v Richards
o Two 15 year old girls were having a ruler fight; one of the rulers broke
and logged into the claimants eye causing her to lose sight in that eye;
Court held the claimant partially liable for contributory negligence as
an ordinary child would have found the same activity dangerous, and
reduced the damages by 50%
- Common Practice
o Where a person professes to have a special skill or competence, the
law requires that when dealing with people in the context of a calling
or profession they do so with an appropriate level of competence.
o

The Bolam test


- Bolam v Friern Hospital Management Committee
o A patient was given electro convulsive therapy and wasnt given a
relaxant or tied down; As a result he sustained a hip fracture
o Courts said the defendant was not in breach of the duty because a
reasonable body of professionals agreed that this was not completely
necessary
o Court held that a man need not possess expert skill, only that of a
reasonable person in the same profession
Modifications to the Bolam principle
Rank/Status v Post
- Where a person occupies a particular rank or post, they will be held to the
same standard as anyone occupying that post regardless of them being new
to the position
- Wilsher v Essex Area Health Authority
o C had been cared for in the intensive care baby unit of the hospital
after being born prematurely; After he was given too much oxygen on
2 separate occasions, he developed an incurable eye condition
o HOL however, was not convinced that on the balance of probabilites
that this was the only factor that could lead to this
o However it was established that the junior doctor was in breach of his
duty of care in monitoring the babys blood; the doctor was held to the
same standards as any doctor in the same situation and it did not
matter that he was a junior
Common Practice
- doctor knows best only applies when they have taken the appropriate steps
in line with other doctors
- Bolitho v City and Hackney Health Authority
o Boy was taken to the hospital with croup. He suffered complications
and died. It was held that if he had been intubated he may have been
saved
o D was not held liable because some other professionals also said that
they would not have intubated.
Setting the standard of care a balancing of factors:
- Courts do not take into account the characteristics of the individual
defendant, they will take into account the situation
- The standard of care will also be different in the heat of the moment or
emergencies
- Marshall v Osmond
o Police officer had been following an unmarked car which he believed
had been stolen; when the car stopped the occupants dispersed and
the officer tried to pull up beside the car, but ended up hitting it
injuring himself and someone hiding under the car
o Officer was not held liable because it was in the heat of the moment
and the gravel conditions led to the accident
- Wooldridge v Sumner
o Sporting accident in a horse show where a photographer was injured
by a horse that went out of control during the competition; court held
the photographer could not claim because the athlete does not try to
care for spectators in the heat of competition
- Even though standard of care in a sporting event is lower, it is never
completely eliminated
o Caldwell v Maguire
- Vowels v Evans
o Claimant was injured when the referee of the rugby match did not
ensure that he was suitable to play In the scrum; referee owed the
players a duty of care to ensure that someone who is in the scrum is
able to play there
o
Probability or risk of injury
- Bolton v Stone
o Ball hit claimant in the head from a cricket pitch. The ball had infact
travelled over 100 meters and then over a 17 foot fence; court held
that there was significant precautions taken and the likeliness of this
happening was not great so the squashed the claim
- ROE v Ministry of Health
o Claimants were paralyzed form the waist down after being injected
with an anaesthetic which was contained in a solution which had
leaked into the injection
o Although it was found to be the hospitals fault, at the time of the
operation they could not have known this; the procedure was applied
with standard medical knowledge so there was no liability
Seriousness of injury
- Generally the more serious the injury or potential for injury, the more likely
the defendant would have fallen before the standard of care required
- the law expects more from a man carrying a pound of dynamite than a
pound of butter
- Paris v Stepney Borough Council
o Man was working in a garage and suffered a serious injury when a
metal chip flew into his eye; unfortunately he was already blind in one
eye, so the accident left him blind.
o He sued the employer in negligence for failing to provide appropriate
safety protection (goggles); It was held by majority of HOL, that even
though the chance of injury was low, the seriousness of consequences
should be taken into account and a reasonable employer should make
sure that his work force is safe; employer was held negligent
o
Cost of precautions
- the courts will also take into account the cost of the precautions versus the
risk of injury
- the lower the cost, in terms of time or money, the more reasonable it is that
the employer take the precaution
- Latimer v AEC Ltd
o Heavy rainfall had flooded a factory floor, which when mixed with the
oil on the floor, made it very slippery; the D put sawdust on the floor,
though not completely covering it, the majority was covered; C fell on
the floor and broke his ankle
o HOL held that the D was not liable because they had taken reasonable
precautions, and the small danger to the employees would only have
been overcome by an onerous cost to them (such as closing the
factory until dry)
Social value of the activity
- the greater the social value of the activity, the more likely the court would
find it reasonable to have dispensed the safety precautions
- Watt v Hertfordshire County Council
o A fireman was injured by lifting gear while travelling on the way to an
accident to save a woman who was trapped under a car; the lorry had
not been fitted with the appropriate equipment to carry the emergency
gear
o Cs claim failed as in an emergency the risk associated with action was
required; a life was worth a limb
- In each case the courts weigh up the likelihood of injury and the
seriousness of harm against the cost of taking precautions and the
social value of the activity before coming to a decision as to what
was reasonable in all the circumstances of the case what the
reasonable man would have done
- This process through which the courts distinguish between acceptable and
unacceptable carelessness that is the balancing of the probability (P) and
likely seriousness of injury (L) against the private and social costs (B) of the
necessary precautions
-
- B < LP = a reasonable person would take precautions = defendant liable if
they do not take precautions
-
- B > LP = a reasonable person would not take precautions = defendant not
liable if they do not take precautions

- Overseas Tankship (UK) Ltd v The Miller Steamship Co, The Wagon Mound
(No.2)
- Ds were transferring furnace oil from nearby wharf onto vessel; due to
carelessness, large quantity of oil spilled into the harbour; Owners of the
wharf were carrying out repairs on a vessel and a spark ignited and hit the oil
in the water, burned down the wharf and the vessels
- Although the chance of fire was low, it was a very real risk; since the Ds had
taken care in putting the fuel on to the ship in the first place they were just
careless this time around; they had fallen below the standard of care
required;
- Or, put another way, B (the cost of taking precautions to prevent the fire) was
less than P (the likelihood of the oil catching fire) and L (the seriousness of
the damage should the oil catch fire).
-
Establishing breach ie question 2 above
- In order to establish whether the defendant has breached their duty of care
two questions need to be considered:
1. How the defendant ought to have behaved in the circumstances what
was the required standard of care in these circumstances?
2. The behaviour of the defendant did they fall below the standard of care
required?
-
7. CAUSATION
Two types of causation factual and legal (remoteness)
- Factual Causation: did Ds breach actually contribute to the loss/injury C
suffered (or would he have suffered the same loss in any event?)
- Legal Causation: assuming that the Ds breach did contribute to Cs loss,
should we make him bear that loss?
-
Factual causation the but for test
- D will have caused a certain loss if, but for his breach, that loss would not
have been suffered
- All that C need to prove is Ds negligence was A cause of his loss
- Barnett v Chelsea and Kensington Hospital
o Cs husband after drinking tea began vomiting; he was taken to
hospital where the doctor told him to go home and get rest; he later
died of arsenic poisoning. Claim failed because even though the doctor
acted negligently, Cs husband would died even if he was treated
promptly
- Causation focuses on a burden of proof which means that C has to prove that
it is more likely than not that, but for Ds breach, C would not have suffered
the relevant loss or injury
- Wilsher v Essex area Health Authority
o Baby was born prematurely and required a catheter to be inserted to
monitor oxygen levels; the catheter was inserted incorrectly and as a
result the baby received too much oxygen which made the baby blind;
the claim failed at appeal because it could not be established that but
for the oxygen the baby would have not gone blind as it was one of 6
possible causes
- McGhee v National Coal Board
o C contracted dermatitis as a result of being covered in brick dust each
day while at work; the D didnt provide showers after work, so the C
had to go home to shower; it could not be established that being able
to shower at work would have prevented the disease from spreading so
the claim succeeded
McGhee doesnt apply the but for test; case showed that D
increased the risk of contracting dermatitis but this isnt
conclusive; this shouldnt be treated as a new authority
- Fairchild v Glenhaven Funeral Services *
o The Cs were all employed by a series of employers, which negligently
exposed them to asbestos during their employment; each of the Cs
developed a fatal disease called mesothelioma ;it is impossible to
completely tell the origin of the disease; it could be formed from
continued exposure or a single instance
o As such claimants were unable to prove on balance of probabilties who
they were working for; Held, all claims succeeded and Ds were held
liable,
o
Exceptions to the but for test key differences and relationship between
Fairchild, Wilsher and Barker
- Exception was created as if the requirements were not relaxed, none of the
claimants would have been able to claim damages (Fairness)
- Compliance; without an exception there would always be a way out for
employers who would then never be found liable
- Fairchild scope
o Ds actions were not only negligent but clearly increased the risk of the
claimant suffering the relevant harm
o The C did suffer the relevant harm
o Though we dont know which D caused the harm, we do know that one
or some combination did
- Barker v Corus PLC *
o As in Fairchild, claimant contracted mesothelioma through exposure to
asbestos in employment; however claimant had spent some time self
employed and it couldnt be shown when he contracted the disease
o Employers were held liable but only in the amount in proportion to how
long he worked for each of them
Barker extends rule in Fairchild: in Fairchild we knew that one
person could have caused the disease where as here it could
have been caused by claimant
Also narrows rule in Fairchild: because the employers were only
liable for a share of the damages each
o Fairchild covered the situation where we couldnt identify who was the
but for cause of the illness but we did know that the cause was a
breach of duty by one of the Ds.
o Barker extends the Fairchild exception so as to hold such Ds liable
even where there were other potential causes which did not involve a
breach of duty by one of them, such as where the C exposed himself to
asbestos in the course of his self-employment
o
Loss of chance
- Hoston v East Berks AHA
o C fell out of a tree and seriously injured his hip; was taken to hospital
where he was misdiagnosed and sent home. He returned a few days
later and had developed avascular necrosis of the hip joint. Medical
evidence said that it was 75% likely that it would have happened
anyway; he couldnt claim on the balance of probabilities
o Could not argue that the negligence avoided him the chance to avoid
the condition
- Arguments against loss of chance claims
o It would potentially impact all negligence claims
Everyone would be either over or under compensated because
they would be awarded based on percentages
o Cases would become more expensive and complex because in all
cases expert statistical evidence would be required
o In majority of cases it is inaccurate to say that C has lost a chance
o
Legal causation and remoteness
- Remoteness: a C cannot recover losses which are regarded as too remote or
too far removed from the defendants breach
o The basic test is one of foreseeability: C can recover so long as it was
reasonably foreseeable that he may suffer losses of that kind if D failed
to take reasonable care
o
- Novus Actus Interveniens (intervening acts) there will be no recovery where
there was an intervening event or act between the Ds breach and the C
being injured which is viewed as breaking the chain of causation
-
Type of loss
- the easier we define types of losses the easier it is to satisfy remoteness tests
- Hughes v Lord Advocate
o Ds had been conducting street repairs and when they left for the
evening they left the manhole uncovered and lit lanterns so people
could see the hole; a child picked up the lantern and went to
investigate the hole; he tripped and caused an explosion
Claim succeeded
o Court held it was entirely foreseeable that the children might
investigate the uncovered manhole. It was also foreseeable that they
might injure themselves by falling down the manhole or burning
themselves with the lantern.
o Relevant loss was personal injury so the case succeeded
As long as the type of injury is foreseeable, the method is not
relevant
o
The egg-shell skull rule
- the defendant remains liable for full extent of injuries even if the claimant is
particularly brittle or weak. You dont get to choose the state of the victim.
Any harm is attributable to you even if it was much more than you intended.
-
Novus actus interveniens intervening acts
- D will not be held liable if there is some intervening act which breaks the
chain of causation
- Knightley v Johns
o Traffic accident in a one way tunnel; C was a police officer who was
sent to close the tunnel and was hit by a car as he neared the end of
the tunnel (instructed by chief); both the instruction and the driving
against traffic were contrary to police rules;
o Cs claim failed, as it was not reasonable
- Causation can be broken by natural events which is wholly unrelated to the
negligence
- An act of a third party can also break the chain
o Medical negligence does not break the chain
- So, once duty and breach are proved, a C will be able to recover
compensation for his losses provided:

o He would not have suffered the loss but for the defendants negligence
(c.f. McGhee and Fairchild)
o It was reasonably foreseeable that breach might cause him to suffer
losses of that kind
o No intervening event or act is to be regarded as having broken the
chain of causation
-

8. DEFENCES

Contributory negligence
- this is a partial defence.
- Occurs when the claimant is also at fault so it reduces the damages
o Law Reform Act of 1945
- 2 things must be proved for this defence
o The claimant failed to take reasonable care to avoid the harm they
suffered
o They would have avoid at least some of the harm they suffered had
they taken reasonable i.e. the claimants negligence was a but for
cause of (at least some of his losses
- Establishing a claim for contributory negligence can be combined into 3
questions
o Did the claimant fail to exercise reasonable care for their own safety
o Did this failure contribute to the damage
o By what extent should the damages be reduced
- Jones v Livox Quarries Ltd
o Claimant was riding on back of traxcavator, contrary to regulations,
when a dumper truck crashed into the back, injuring the claimant; he
sued the employer for the truck drivers negligent driving
o It was held that the claimant contributed to his own losses by riding on
the back
- Froom v Butcher
o Claimant suffered head and chest injuries when his car was hit by the
defendants; he was not wearing his seatbelt
o Was held contributory negligent so damages were reduced by 20%
o
Consent Volenti non fit injuria
- Consent is a complete defence
- 2 ways for the defence to arise:
o Claimant consents to specific harm caused by the defendant and
(sometimes) where they have consented to the risk of that harm
o Where the claimant consents (or, at least, is to be treated as
consenting) to the defendant excluding their liability for any injuries
they may cause
- ICI v Shatwell
o C and D worked at a Quarry and had the job of blowing up quarry face
to expose rock; after a failed explosion they needed to test the charges
and did not do so from safety of shelter. One charge exploded injuring
them both
o Cs claim failed because though D had been negligent he could raise
the defence of consent
- Morris v Murray
o C and D had been drinking all day and decided to go for a flight in Ds
plane; plane crashed, D died and C was injured
o Cs claim failed, since they could raise defence of consent because the
claimant knew about the risk and consented to it
o
o
-
Illegality
- Defence of illegality denies claims from injured parties that occur while
committing unlawful activities
- It is also a complete defence
- It is grounded on the fact that no action may be founded on an illegal act
- Pitts v Hunt
o Pitts and hunt have been out drinking together. The claimant rode
pillion and encouraged the defendant to drive recklessly. There was an
accident. Hunt was killed outright and Pitts was seriously injured.
o Held: claimants claim failed on the grounds of illegality (remember:
volenti (consent) was barred by the RTA 1988 s149 (3)
- Gray v Thames Trains ltd
o C injured in the Ladbroke Grove train crash caused by the negligence
of the defendants. He developed PTSD the effects of which caused him
to stab someone to death. HE pleaded guilty to manslaughter on the
grounds of diminished responsibility. The claimant sued the defendant
for the loss of earnings suffered both before and during his detention
He sued for loss of earnings, but the defendants argued that the
loss after the murder, they were no longer liable for
o The defendant sought to defend the claim on grounds of illegality
o Held: Claimant was unsuccessful
It would be inconsistent to detain them and allow them to
recover at the same time
o

TRESPASS TO THE PERSON (question 2)


- Trespass to person are rights based torts, which protect an individuals
physical/personal integrity
- Harm seeks to address not whether actions have caused physical damage,
but rather claimants right so unjustifiable interference
-
Relationship with criminal law
- there is a close connection with criminal law, but claimants often seek claims
in tort because there is greater financial compensation, and also is used after
a criminal claim fails (as you can then still claim in civil e.g. OJ Simpson)
-
Distinguishing trespass and negligence
- Proof of harm trespass torts are actionable per se, that is without proof of
loss
- Type of harm you can recover for some types of harm that can not be
recovered in negligence
- Reasonableness acting reasonably does not always does not always prevent
someone from committing a tort
-
1. BATTERY

Definition
- Battery the actual infliction of unlawful force on another person
- There is no need to show that the defendant actually caused harm by
touching claimant
- In Collins v Wilcock, the limits of battery were established: in order to be an
actionable battery, force exceeding physical contact which is generally
acceptable in the ordinary conduct of daily life must be applied by immediate
and direct means
- Actionable battery requires:
o The intentional, or possibly negligent application of unlawful force
o Must be direct and immediate
Directness has been applied with much flexibility
o There must be no lawful justification or excuse
- Scott v Shepherd
o Defendant was found liable after he threw a firecracker into a
marketplace, even though it had been thrown on by 2 people to protect
themselves, before it eventually exploded in the face of Scott
- DPP v K [1990]
o A schoolboy has stolen from science class some sulphuric acid and is
messing around with it in the bathroom. He puts it in the hand dryer
that was turned around, and when turned on burned the user.
They held that the direct effect was sufficient even though he
left the acid in the dryer

Intention
- Two aspects
o Intentional conduct that is willed voluntary action
Contrast is when it is out of the defendants control
o Willed actions for example to touch or hurt someone
- Fowler v Lanning
o Claimant was shot while out hunting with the D. Brought claim alleging
that he was just shot, which was dismissed as it was argued that there
had to be some intention or negligence
- Williams v Humphrey
o Defendant pushed the claimant into a pool, causing C to break his
ankle. D argued that he did not intend to hurt C, but this did not matter
as he intended to push him
- Fagan v Metropolitan Police commissioner
o Claimant was found guilty of assault because he left his car on the
police officers foot and even though there was no intention it still
happened
- Unlawful touching; touching will only amount to battery when it falls outside
the category of generally acceptable conduct
-

Defences
- Consent most important defence in this area of law
- Consent is only valid if the following conditions are met
o C agreed for D to touch her in the way he did
Chatterton v Gerson
C had an operation which left her with a painful scar; D
recommended a operation to block the pain receptors in
that area but after the operation the area became numb
and she suffered a loss of muscle power. She claimed this
amounted to battery which was refused because she
consented to the procedure
o At the time of touching, Cs level of maturity, intelligence, and
understanding was sufficient to enable C to decide to let D touch her
R v Williams
Defendant had be given claimant singing lessons
Convinced to have sex with him by telling her it would
help her singing voice
This did not qualify as consent as she was agreeing to
something which she did not fully understand

o C did not agree that D could touch her because she was forced by
someone else
- Voluntary assumption of risk
o There is no battery when the C has voluntarily taken the risk that
unlawful force will be applied to his/her person

-
2. ASSAULT

Definition
- Assault - An act which causes another person to apprehend the infliction of
immediate, unlawful force on his person
- An actionable assault requires:
o the defendant must intend or be careless as to the claimants
apprehension of the application of unlawful force;
o the claimant must reasonably apprehend immediate unlawful force
being applied to them; and
Stephens v Myers
The claimant acting as a chair at a Parish asked the
defendant to leave the meeting to which the defendant
did not want to comply; He threatened him and advanced
towards him with a clenched fist and was stopped by
other people at the meeting. Defendant was held liable
for assault

o the threat must be of the application of immediate and direct force
If the claimant can see that the defendant is not in a position to
apply immediate and direct force to them then they have
nothing to fear and so the defendant is not liable for assault.
Thomas v National Union of Miners
o Strike-breakers sought an injunction against
picketers from verbally abusing and harassing
them as they went to work
o Claim was dismissed as Lord Scott, held that he
was unable to see how it could be categorized as
assault if they are protected by police and in
vehicles which were held back from the picketers;
there was not threat of immediate and direct force
o no lawful justification or excuse (defences)
- Words or Gestures
o R v Ireland
Three women had been repeatedly subject to harassment by
defendant including silent phone calls and they suffered
psychiatric illness as a result
Claim succeeded as lord steyn said, there is no reason why
something said should be incapable of causing apprehension of
immediate and personal violence
o
Defences

3. FALSE IMPRISONMENT

Definition
- False imprisonment the unlawful imposition of constraint on anothers
freedom of movement from a particular place
- A complete restriction is necessary to render the defendant liable
- Actionable claim for false imprisonment requires
o The defendant must intend, or possibly be negligent as to the
restriction of the claimants movement
R v Govener of Brockhill Prisons, ex parte Evans (No 2)
Claimant was held in prison for crimes committed but the
governor miscalculated the release date which kept the
prisoner behind bars longer; the claim was successful
even though there was no intention
o There must be a complete restriction of movement
Bird v Jones
Prevented from using public footpath on Hammersmith
bridge on London
Although he was prevented to use the footpath, freedom
of movement was not completely restrained as he was
able to turn back the way he had come
Knowledge of imprisonment
It is not necessary that the claimant know that they were
falsely imprisoned, but if they dont know it would affect
the amount of compensation available to them
R v Bournewood Mental Health Trust (ex parte L) [1999]
o Person held in a unlocked ward, but staff agreed if
he tried to leave they would keep him there and
this is what happened
o Court held that though they were prepared to
imprison him, that is not the same as actually
imprisoning him
o It must be done without lawful authorization
-
Defences
4. DEFENCES

Consent
o If A consents to being imprisoned to B there will be no tort committed. If
the permission is revoked, B will not be committing a tort if released
within a reasonable amount of time
o Herd v Weardale Steel, Coke and Coal co ltd [1915]
Miner was in the pit, and was unhappy with the conditions in the
mine and was worried about his safety
Told the employer he wanted to come up, but the employer refused
Brought him up a few hours later
Held that the employer was not liable, because the miner
consented. Also held that the company could sue miner in breach of
contract

Refusal of consent
Voluntary assumption of risk
- Voluntary assumption of risk
o There is no battery when the C has voluntarily taken the risk that
unlawful force will be applied to his/her person

Necessity
o In situations where the claimant is unable to consent the defendant may
be able to rely on the limited defence of necessity.
- On this basis where a patient is unconscious but otherwise competent and
not known to object to the treatment, doctors may intervene in the best
interests of the patient. However they should do no more than is reasonably
required in the best interests of the patient

Mental Capacity Act 2005


Mental Capacity Act (2005)
- Section 5:
- D will act lawfully in doing an act in connection with the care or treatment of
another person (P) if
1. before doing the act D took reasonable steps to establish whether P lacked
capacity in relation to the matter in question; and
2. when doing the act, D reasonably believed that
1.that P lacked capacity in relation to the matter; and
2.it was in Ps best interests for the act to be done; and
3.at the relevant time P was not under 16 (s2(5))

- The Metal Capacity Act lays down a two-stage test:


1.C must be unable to make a decision due to a disturbance in the functioning of
the mind or brain (s2)
2.C is unable to do this if they are unable to
a. Understand the information relevant to the decision;
- it would be argue in an accident that you were not able to fully understand
the decision, at that time, in order to justify some sort of operation
b. To retain that information
c. To use or weigh that information as part of the process of making the decision
d. To communicate the decision (by any means)

B v An NHS Hospital Trust [2002]


- Under s1(4) a person is not to be treated as being unable to make a decision
merely because he makes an unwise one.
- Underwent an operation and was not happy so she asked the doctors to turn
off her ventilator to end her life. Doctors refused.
- It was held that she was not suffering from any mental incapacity, and you
cannot be held to be lacking capacity, just because others do not agree with
your decisions

Self-defence
- The defendant may be able to argue that they acted in self-defence.
- The defendants actions must be proportionate to the force exerted against them
(reasonable force).
- Cockcroft v Smith [1705]
o The claimants act of running with his finger extended towards the
defendants eyes did not justify the defendants action of biting off part of
the offending finger.

Statutory authority
- Restraining someone without lawful justification
o Effectively a defence to false imprisonment
o R v Deputy Governor of Parkhurst Prison, ex parte Hague [1982]
Hague a category A prisoner was unable to establish a claim for
false imprisonment in relation to segregation following a prison
transfer
He was confusing the fact of confinement with the conditions of
confinement
False imprisonment is confined to the former
o

5. INTENTIONAL INFLICTION OF EMOTIONAL OR PSYCHIATRIC HARM

The rule in Wilkinson v Downtown


- This case deals with psychiatric harm
- Claimant was told that her husband had been involved in a serisous car accident.
This was a practical joke,
- It caused the claimant to go into sudden and violent shock and produced severe
physical and psychological reactions
- D willfully done an act calculated to cause physical harm to female. He infringed
her right to personal safety
- Key feature was whether the defendant INTENDED to cause harm
o In order to establish the tort in Wilkinson v Downton the following
conditions must be established:
1.A deliberately does something unjustifiable to B; and
2.As actions cause B to suffer either physical or psychiatric illness;
and
3.At the time A acted
A intended to cause B to suffer such illness; or
A knew that his actions might cause B to suffer such illness;
or
It was highly likely that As actions would cause B to suffer as
this illness.
However if 1-3 are established then B will have a claim in
negligence there is no need for Wilkinson v Downton
- Wainwright v Home Office [2004]
o Strip searches at a prison that were sloppy
o Casued anxiety and distress for both Ms. Wainwright and son
o The son was also touched. (battery)
This was not appealed
o No need for the rule because it has led to Mental health act (Wilkinson v
downton)
o This case went to EC, and court unanimously held that there was breach
of Article 8 rights
-

The Protection from Harassment Act 1997


- Person must not pursue a course of conduct (a) which amounts to harassment of
another, and (b) which he knows or ought to know amounts to harassment of the
other
- Harassment is defined as including alarming the person or causing distress
- Protection from harassment act
o Creates both a civil and criminal action for harassment
o Purpose is to stop people from doing things
o Primary remedy is an injunction
o Intention is not necessary, only that the act amounts to harassment
Harassment is defined as including alarming the person or causing
them distress
Must be a course of conduct must be at least 2 occasions
- Fine v McLardy
o First case brought under the act
o Began a course of conduct designed to follow the professor
Was a course of conduct designed to harass a professor
- Thomas v News Group Newspapers ltd
o Claimants alleged that sergeants had been racist
o The sun published a article, which caused Thomas harm
o Publication of article was course of conduct
o Courts agreed this was harassment
-
-
VICARIOUS LIABILITY
- vicarious liability allows you to sue someone other than the tort feasor
- usually used in employment context
-
Justifications for vicarious liability
- created as a result of social justice
- Justifications include:
o Allocation of economic benefits and risks
o Deep pockets; allows you to go after who ever has the deepest pockets
o Distributes loss through system; insurance companies and higher prices to
balance
o Encourages good working practices
- The employer is not liable instead; they are liable in addition to the employee
-
Establishing vicarious liability
A tortious act
- The employee must have committed a tortuous act
The employer-employee relationship
- This relationship must exist in order for vicarious liability to arise
- The courts have taken a variety of factors taken into account, typically
understood as broadly falling into two tests:
o control (how far the employer is able not only to tell the employee what
to do but also how to do it) and
o integration (how far the employees work is integrated into, and an
integral part of, the particular business)
- Ready Mixed Concrete Ltd v Ministry of Pensions and National Insurance [1968]
o Owner-drivers of lorrys who delivered concrete for the company; question
at hand was whether they were employees or contractors.
o Drivers expected to buy and maintain their own vehicle and they were not
integrated as employees, even the company had a wide range of control,
including making drivers wear uniforms and paint the trucks company
colours.
o However, court ruled they were contractors because they owned the
vehicle, and they took the chance of profit and risk of loss,
- Court has created a distinction between contract for employment and contract of
employment
o For contracting
o Of full time employee
- Hawley v Luminar Leisure Ltd [2006]
o A door steward, hired to keep order at Ds nightclub, physically assaulted
the C, causing him permanent and serious brain damage. D did not hire
their door staff directly, but rather contracted with another company, ASE
Security Services (which had since gone into liquidation), to provide
appropriate staff.
o Who employed the door steward?
o Court of Appeal held D liable:
- If anyone was going to prevent Mr Warren's behaving badly and this particular
act, it was Luminar's [Ds] manager. ASE's sole role seems to have been
employing Mr Warren in the first place, providing him as a doorman at the club
and paying his wages for as long as Luminar were happy to use his services
-
-
In the course of employment
- The act must have occurred while in the course of employment otherwise a
vicarious liability claim cannot exist
- an employee is held to be acting in the course of their employment if
o (a) the conduct is authorised by their employer or (b) is considered to be
a wrongful and unauthorised mode of doing some act authorised by the
master and is so connected with acts which he has authorised, that they
may rightly be regarded as modes although improper modes of doing
them.
- Lister v Hesley Hall Ltd [2002]
o C were sexually abused while at a residential school by the housemaster.
They brought claims for personal injury against his employer on two
grounds: first, that they were personally negligent in the care, selection
and control of the housemaster (this was rejected at first instance and was
not pursued further) and, secondly, that the employers were vicariously
liable for the torts committed by the housemaster.
o House of Lords held the employers vicariously liable for the housemasters
actions
The housemasters actions were so closely connected with his
employment that it would be fair and just to hold the employers
liable the sexual abuse was inextricably interwoven with the
carrying out by the warden [housemaster] of his duties
- Application of close connection test
o Mattis v Pollock [2003]
Owner of a nightclub was held vicariously liable for actions of a
bouncer employed by the club who rendered the C paraplegic after
stabbing. There was a fight at the club after which the bouncer
went home, got himself a knife and, intent on revenge, went after
C. The evidence showed that the bouncer had a history of
aggression and the assault on the C was so closely connected with
what the owner expected of the bouncer in the performance of his
employment duties that it would be fair and just to hold him
vicariously liable.
- Vicarious liability arises when the employees unlawful conduct was closely
connected with the course of employment
o Weir v Chief Constable of Merseyside Police [2003]
Helping his girlfriend move
Found someone inside his girlfriends apartment, so he threw him
down the stairs and into the police car
Because he identified himself as a police officer, threw him down
the stairs and took him to the police station, he was clearly in
course of conduct and would be liable
o N v Chief Constable of Merseyside Police [2006]
Police officer off duty, picked up drunk girl and raped her
Used his uniform as a trust mechanism
This would not be a vicarious liability situation because he is clearly
not acting in the same conduct of employment
o Gravil v Redruth Rugby Football Club [2008]
Rugby player punched a oppenent in the face during the course of a
match, causing him serious injury
Court held club vicariously liable as it was done under the course of
employment for the club, and the club did nothing to change the
course of conduct of the player, suggesting that it was normal in
the game.
Close connection test goes even further, but considers if the risk Is
reasonably foreseeable; because the injury was reasonably
foreseeable the club was vicariously liable
-

TRESPASS TO LAND AND PRIVATE NUISANCE

1. TRESPASS TO LAND*
- Trespass torts are actionable per se, that is without proof of harm
- Concerned with direct harm
- Harm lies in the fact that the land owned by one party has been unjustifiably
interfered with by another
-

Definition
- Elements to trespass to land:
o Intentional or possibly careless, interference with anothers land
C must either own or be in possession of the land
Not only land which is covered; also includes things under it and
potentially airspace

o The interference must be direct and usually physical
Physical in the sense that something must have actually happened
Key issue is the amount of control that D had over the object/matter
4 categories of physical interference
crossing a boundary onto land
Remaining on land
Going beyond what is permitted while on someones land
Putting or placing objects on someones land
League against cruel sports v Scott
Hunting dogs strayed onto land was enough to amount to a
trespass as there was no means of prevention put into place
to keep the dogs from straying (this is seen as an implied
intention)
o No lawful justification or excuse
Defences
- Permission/consent
- Legal justification
- Necessity
- Esso Petroleum v Southport Corporation [1956]
Letting the cargo go (the oil), was necessary in order to save the
life of his crew, and thus it was necessary to dump the oil in the
water.
- Southwark London Borough Council v Williams [1971]
Squatters were in a house owned by the council, and they argued
that it was necessary because they had nowhere else to live.
However, Denning ruled that this was not a valid necessity because
if homelessness was a viable reason for trespassing, then no ones
home would be safe
- Monsanto plc v Tilly [2000]
Tilly argued that it was necessary to go on to the land owned by
Monsanto, because they were growing crops that were not natural
and Tilly argued that it was necessary to the environment. This was
not allowed as a defence. It was still trespassing
- Damages/ Injunction
- These are the remedies available in a trespass case

2. PRIVATE NUISANCE

What is private nuisance?


- private nuisance is concerned with indirect interferences
- it must be unreasonable and is only actionable on a proof of damage
- Trespass to land v nuisance
Trespass to land Private nuisance
Direct interferences with land Indirect interferences with land
Actionable per se Actionable on proof of damage to the interest
Examples: in land
Walking across someones land without Examples:
permission Smoke from a bonfire
Dumping waste on someones land Noise from a party

- Types of things included in nuisance claims:


- Actual (physical) damage to land (for example, by flooding, noxious fumes
or vibrations)
- Interference with 'amenity' interests the use and enjoyment of land (for
example, by the creation of smells, dust or noise)
- Encroachment (for example by tree roots or overhanging branches).
- St. Helens Smelting Co v Tipping
- Poisonous vapours from the defendants copper smelting works had
caused damage to trees and shrubs on Mr Tippings 1,300 acre estate in
Lancashire one and a half miles away
- Was there a nuisance?
Yes. The injury to the claimants trees and shrubs gave rise to an
action in nuisance
Why?
House of Lords drew a distinction between
interference with amenity interests (that is, use and
enjoyment of the land) locality taken into account
actual physical damage (where natural of locality is
irrelevant)
- Court decided that the actual physical damage, through even indirect
means, would always mean that your use of land would be unreasonable
- Elements of a claim in nuisance

- In order for there to be an actionable nuisance the following elements


must be satisfied:
1. there must (usually) be an emanation
2. which amounts to an unlawful interference with a persons use or
enjoyment of land (or some right over it)
3. no applicable defences
-
- Not every interference can amount to a nuisance as there must be a balance
between the right of the occupier to do what he likes with the land, and the right
of the neighbour not to be interfered with
-
The reasonable user a matrix of factors
- Factors that are always considered (intensity including duration, frequency
and timing of the interference);
- A factor that is sometimes considered, dependant on the type of claim (the
nature of the locality); and
- Other factors that are sometimes considered, if relevant to the claim
(sensitivity of the claimant; bad intention of the defendant).
- Kennaway v Thompson [1981]
o Intervention by injunction is only justified when the irritating noise causes
inconvenience beyond what other occupiers in the neighbourhood can be
expected to bear.
-
The intensity of the interference
The nature of the locality
- The reasonableness of the use of land can depend on, alongside other
considerations, the character or nature of the area of land it is in its 'locality'.
- 'what would be a nuisance is Belgrave Square would not necessarily be so
in Bermondsey' (Thesiger LJ in Sturges v Bridgman [1879] p 865).
- It only applies in cases of lost amenity ie use and enjoyment of land.
It does not apply in cases of material physical damage) (St Helens Smelting).
-
Can the locality change?
- Gillingham Borough Council v Medway (Chatham) Dock Co Ltd [1993]
- A disused Royal Naval Dockyard was taken over by the Medway Ports
Authority to be used as a 24-hour commercial port. Many residents
complained about the level of traffic passing their properties, particularly
throughout the evenings and night.
Lorry passing through every 1.5 min. Could not open the windows..
- Buckley J held that the granting of the planning permission had in this
instance changed the nature of the locality, which was now wholly
commercial in its character. Local residents therefore could not complain
about the serious disruption caused to them by commercial operations.
- Wheeler v JJ Saunders Ltd [1996]
- D obtained planning permission to extend his pig sties on his farm which
were situated as near as possible to his neighbours land in order to annoy
C, with whom he did not get on. C sued in nuisance in respect of the
smells emanating from the pig farm.
Nuisance is about one thing emanating from the other
- The Court of Appeal held that the smell emanating from the defendants'
pig farm amounted to an actionable private nuisance.
- Planning permission did not operate as a legitimate defence to a claim in
nuisance and though it might alter the nature of a locality, it had not done
so in this instance.

Sensitivity of the claimant


- In order for a interference to be actionable it must be a material inconvenience
with ordinary comfort of human existence
- Robinson v Kilvert
o Claimant rented warehouse space for a paper business in the top floor of a
building; owner of the building started a manufacturing business. He heat
from the business affected paper business by drying out the paper which
the claimant is suing for
o Court held that if a man carries on a exceptionally delicate trade he cannot
complain if someone else does something that is lawful on their own
property
- Network Rail Infrastructure v Morris
o Network rail took over infrastructure which caused electromagnetic
interference with Morris recording studio; Morris wanted an injuction
o Court did not allow this as it was not reasonably foreseeable that the
railway would be able to control this as they took over the rail line from
British Rail
-
The bad intention of the defendant
- Christie v Davey
o C was a music teacher who occasionally worked from home. Her children
also played musical instruments. D wrote a letter in which he complained
about the noise. C ignored letter. Instead of writing again, D created his
own disturbances. He banged on the wall, clattered metal trays together,
whistled and shouted each time he could hear music emanating from the
C house.
o Both sued in nuisance who should win?
Christie, the family with musical inclinations, won the case because
they were using the house in a reasonable manner
Davey, was in fact creating noise in a malicious manner, with intent
to disturb
- Summary: was there an unreasonable interference with Cs use and enjoyment
of land?
Factors that are always considered Intensity including duration, frequency
and timing of the interference

A factor that is sometimes considered, The nature of the locality


dependant on the type of claim

Other factors that are sometimes Sensitivity of the claimant; bad intention
considered, if relevant to the claim of the defendant.

-
Defences to nuisance
Statutory authority
- If Ds activities are authorised by statute or, more specifically, if a statute
provides that D must use their land in a particular way, which then inevitably
causes a nuisance to a neighbouring land user, then D will have a total defence
to the claim
- Allen v Gulf Oil Refining Ltd [1981]
o They want to have a oil refinery in Wales, and it is expressly approved by
parliament act
o Act says that it can be built, but says nothing of its operation
Local residents claimed a nuisance because of the noise coming
from the plant
Bare majority in HOL, that this was not a nuisance
- Impact of the Human Rights Act 1998
o Hatton v UK [2003]
A group of families living near Heathrow
Claimants claimed that the noise quota was a violation of the article
8 rights, as the noise was all night also
Court found that it was not a breach of statutory 8 rights
This was because the night flights contributed to the local economy
-
20 years prescription
- Sturges v Bridgman [1879]
o C and D had been adjoining neighbours for more than 20 years. As part of
his business, D used large pestles and mortars in the rear of his premises.
C who had built a consulting room in his garden, then found that noise and
vibrations from Ds work interfered with his own work and he sued in
nuisance asking for an injunction.
o D was granted the injunction even though C had worked in the same way
for more than 20 years and D knew this and had had no prior complaints
about it. The time ran only from the point that this began to be a
nuisance, and this was after the consulting room had been built.
o The court also viewed 'coming to the nuisance' as an ineffective defence.
Courts held that the 20 years prescription rule, starts from the time
when the actions become a nuisance
Moving into the nuisance is not a defense (doctor building his
waiting room in the same area as nuisance, is not a defense for the
person causing the nuisance)
- Miller v Jackson [1977]
o C brought a house next door to a cricket club. On a number of occasions
cricket balls had been hit into their garden or house on a number of
occasions.
o C sued in nuisance.
o Court of Appeal reluctantly found that the cricket clubs activities
constituted an actionable nuisance.
However, they refused to award an injunction, awarding damages
instead, on the grounds that the community interests outweighed
the personal interests of the C.
o Denning dissented, he was critical of the coming into the nuisance
defense, and that there should have been no damages awarded
He felt they were new-comers coming into the community should
not be able to determine the actions of the community
-
What counts as an interest in land i.e. who can sue?
- The House of Lords emphasised in Hunter v Canary Wharf that nuisance is a tort
to land. This has two consequences
o 1: B must have an interest in the land to which As actions constitute a
nuisance
o 2: B can only claim for harm done to the land (though this can include
harm to its amenity)
- Hunter v Canary Wharf Ltd [1997]
o A number of local residents, who included homeowners, their families, and
other licensees, had complained about the building of the Canary Wharf
tower in the London docklands development. The tower which is nearly
250 metres high, over 50 metres square, and has a metallic surface was
found to interfere with the television reception of neighbouring homes.
o Two preliminary questions arose:
Could an actionable nuisance exist in respect of interference with
television reception and
Was not an actionable nuisance (HOL)
o They said it was an unreasonable use of land
If there was an actionable nuisance, who of those affected could
sue?
You could only bring a claim if you had interest
o Either landowners or tenants
o Court held that this was not a reason to stop the building of something
that would bring business to the community; tv was not a reasonable
cause to stop development
- McKenna v British Aluminum Ltd [2002]
o 30 children from a number of households sued in nuisance (and Rylands)
alleging that emissions and noise from the defendants neighbouring
factory was an invasion of privacy and had caused them mental distress
and physical harm.
o Did they have sufficient interest in land to sue?
Interest has been extended to include children
- 'there is obviously a powerful case for saying that effect has not been properly
given to Article 8(1) if a person with no interest in the home, but who has lived
in the house for some time and had his enjoyment of the home interfered with, is
at the mercy of the person who owns the home, as the only person who can
bring proceedings'
o
What damage can be claimed for?
- Damages for private nuisance are only awarded:
o where the value of the land concerned has decreased, or
o for the affect a nuisance has on the claimants use and enjoyment of the
land (their amenity interest).
- The sum awarded will not increase even if many people are affected on the same
piece of land.
- No claim for personal injury but it IS possible to claim for personal discomfort
o Bone v Seale [1975]
Claimant recovered damages for personal discomfort they suffered
as a result of a unpleasant smell emanating from a pig farm;
monetary value of land could not be shown to decrease there was a
value to the loss of enjoyment of the land which was a result of the
smell
-
Remedies
- Two major remedies in nuisance
o Injunction
Courts are generally willing to award an injuction unless there is a
reason that damages should be given instead
I.e. Miller v Jackson
Injunctions can be awarded in whole or in part
Shelfer v City of London Electric Lighting Co
C claimed that vibrations caused by D were a nuisance and
was granted an injunction; case laid down 4 conditions in
deciding to grant damages in lieu of injunction
o Injurty to the claimants legal rights is small
o It is capable of being estimated in money
o Can be adequately compensated by small amount of
money
o And it would be oppressive to give the defendant an
injunction
Kennaway v Thompson
C complained that the noise caused by power boat racing
close to home was a nuisance; D argued that she knew about
the racing and decided to move their anyway
Court granted a partial injunction restricting the racing to
specific times
o Damages
Damages may be granted in lieu of an injunction
Dennis v MOD
Cs owned a hall near a RAF facility
They argued that the frequent noise from the training facility
caused a diminution of the capital value of the property as
they had been unable to develop to commercial potential of
the land, losing profit
Courts awarded damages that amounted to loss of capital
value, and to reflect the past and future loss of use and
amenity of the land