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Dissecting the
Law between
Neighbors;
Brian Bwesigye and
Najjuko Brenda.
This is a draft and should not whatsoever be quoted in anyway
as authority of any nature.
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Introduction.
Ordinarily, who is my neighbor? The Mitchell Hall resident who stays in room E34 knows his neighbor as the
one who resides in the next room E33. Then if a neighbor is the one who live near you, what law governs the
relationship between you and him? That is precisely what we seek to explain in this disposition. Looking at the
Oxford’s dictionary of law, there is no definition of who a neighbor is but rather the neighbor principle is
explained on page 354;
“The neighbor principle is a principle developed by Lord Atkin in the famous case of Donoghue V
Stevenson (snail in the bottle case) to establish when a duty of care might arise. The principle is that one
must take reasonable care to avoid acts or omissions that could reasonably be foreseen as likely to injure
one’s neighbor. A neighbor was identified as someone who was so closely and directly affected by the act
that one ought to have them in contemplation as being so affected when directing one’s mind to the acts
or omissions in question.”

So what led Lord Atkin to lay down that principle and make anyone capable of being my neighbor not that he
may stay near me but may be affected by my acts or omissions? In Donoghue V Stevenson, the plaintiff found a
snail in ginger beer that had been bought for her and was taken ill, poisoned by the drink or sickened by the
thought of it or both. In suing the manufacturer of the beer, the major issue was whether the manufacturer is
under any duty to the consumer to take care that the article in free from defect and likely to cause injury to
health. Secondly, whether the plaintiff had a cause of action. It was held, while propounding a new cause of
action in negligence that a manufacturer is under duty to the ultimate purchaser to take care that the product is
free from defect.

The neighbor principle was thus set and a neighbor defined as any person so closely and directly affected by any
act of the defendant that he ought reasonably to have him or her in contemplation as being so affected when
directing his mind to the cats or omission which are called in question. Interpreted narrowly, a manufacturer of
products owes a duty that the product reaches the consumer in good form. A wider interpretation is that the
neighbor principle, the duty of care and the test of reasonable foreseeability which is the foundation of the tort of
negligence. Simply put, our neighbors-in-law are not necessarily the people who stay next door or upstairs. Of
course, even those are likely to be affected by what we do, but the principle covers even people who are miles
away from where we actually stay provided they are foreseeable victims of our acts or omissions.

Does this mean that the law between neighbors covers all neighbors-in-law? As stated above, there is need to
understand the two kinds of neighbors, that is the real neighbor next door and the neighbor-in-law. The latter
only has a cause of action in negligence which was founded in 1932 in Donoghue V Stevenson. However, long
before 1932 there was law relating our actual neighbors. These neighbors-in-fact as opposed to neighbors-in-law
are likely to be affected by everything we do; for instance, they may be disturbed by noise as you play loud music
after finishing your test, may be nauseated by the smell of food as you make a meal for your bencher or even by
the weird sight of the wall pictures in your room – so there must be rules to ensure that much as you enjoy your
rights, you do not tamper with theirs. That is different from the law of negligence.

The law between neighbors thus covers this original area of neighbors-in-fact. It thus includes strict liability
cases, cases of nuisance, liability for fire escape, animals and occupier’s liability. The discussion that negligence
has negatively affected them so much that little is left of them is not for now; what we are concerning ourselves
in this disposition is that old law regulating the rights and compensating neighbors for adverse effects of the
defendant’s use of his land. Our attention is paid to the special relationship between neighbors-in-fact.

The rule in Rylands V Fletcher.

The rule in Rylands V Fletcher is the principle that a person, “who for his own purposes brings on his lands
and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and if he does
not do so, is prima facie answerable for all the damage which is the natural consequence of its escape. It was first

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stated in the case, Rylands V Fletcher, in which the defendant had a reservoir built on his land that caused
flooding of the claimant’s mine. Court held that the defendant was liable for damage caused by the natural
consequence of the escape of the water.

The rule creates a tort of strict liability for extra ordinary and unusual things, accumulated on the land, that give
rise to an exceptionally high risk of danger or mischief if they escape. The following must be taken note of in
analyzing the operation of the rule;
1. There must be an escape onto another’s land.
2. Only those with an interest in the land may sue.
3. The rule only protects rights to and enjoyment of land.
4. Liability is limited to damage of a type that is reasonably foreseeable.
5. The rule only operates in respect of damage to property but not personal injuries.
6. The use of the land must be unnatural in order for the rule to apply.
7. Further, there must be escape of the thing put on the land beyond the boundaries of the user.

The rule admits defenses to the rule in Rylands V Fletcher, among others consent of the plaintiff, default of
the plaintiff, act of God and act of a third party. Statutory authority may also be raised as a defense to the rule.

In simple layman’s terms, the rule in Rylands V Fletcher restricts users of land from harming their neighbors
when they put their own land to unnatural uses and the things put on the land escape to the neighbors.
Originally, it was of a strict liability nature, but later, the issue of reasonable foreseeability was raised thus
making the tort less of strict liability and more of a negligence tort.

Liability for Fire escape.

Common law imposes strict liability for the negligent use of fire, which leads to its escape and results in damage
to the property of others. Liability was modified by the Fire Prevention Act of 1745 which excluded liability
where the fire was accidentally started. However, although started accidentally, where it spreads as a result of
negligence, common law imposed liability.

In Filliter V Phippard, court held that the Act could not apply where the fire was started intentionally but
spread unintentionally without the negligence of the defendant. Common law thus imposed liability and Rylands
V Fletcher applies to fire intentionally started.
In Musgrove V Pandelis, it was held that the Act did not apply to fire started in circumstances that imported
the application of the rule in Rylands V Fletcher.

Court further held in Mason V Levy that the rule in Rylands V Fletcher applies to fires brought on the
defendant’s premises intentionally as well as ,materials kept under conditions involving a substantial risk of a
fire. In the case, it was flammable material that was kept in congested store.
In Balfour V Vorty, court held that the defendant could escape liability where the fire was started by a stranger
over whom the defendant has no control. In the case, fire was started as a result of eth negligence of court actors
invited on the land by the defendants and as such, they were; liable.

Accidental fire.
In Filliter, accidental fire was interpreted as one produced by mere chance or incapable of being traced to any
cause.
In Collingwood V Home and colonial stores, it was held that the use of electric wiring was ordinary and
reasonable user of premises and the defendants were not liable under the rule in Rylands V Fletcher.
In Musgrove V Pandelis, the plaintiff occupied a room over a garage and left out one part to the defendants
who kept in their car. The servant of the defendant with no negligence led the petrol in the carburretor to catch

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fire. He could have shut the tap connecting the tank to the carburetor but he did not for lack of experience. The
fire spread and damaged the plaintiff’s property and the defendants were held liable.
In Goodman V Hangraver, fire started naturally bur spread out of negligence and it was held that the Act did
not apply.

It must be noted that if a person without statutory authority brings fire into dangerous proximity to another’s
land, he does s at his peril and is liable if it does damage whether he has been negligent or not. Thus, where the
defendant without statutory authority used a steam engine on a highway, it was held that the defendant was
liable for the damage resulting from the escape of sparks, but railway companies acting under statutory
authority are generally liable only for fires caused by their negligence. If an occupier of land starts a fire
intentionally or negligently, he is under a duty at his peril to prevent it form doing damage to others.

Liability for Dangerous animals.

Under common law, a person who keeps animals is under a duty to keep them from trespassing and to prevent
harm from animals, he is aware of their dangerous tendencies or is presumed to be aware. An owner of livestock
is liable for any damage that may occur to the land or crops as well as livestock of another. However, there is a
defense of default of the plaintiff, act of a third party and act of God. Where an animal was inersuefere nature,
the owner was only liable for the kind of damage to be expected of such animal. Where it was livestock, damage
had to be according to the natural characteristics of the animal.

Under common law, a keeper of an animal was strictly liable, independently of negligence any damage done by
the animal if it was fara e nature (belonged to a dangerous species) if he knew about its vicious character. The
law imposes strict liability on a possessor of a vicious animal for damage.

In May V Burdett, the plaintiff recovered damages in respect of a monkey bite inspite of the lack of negligence
on the part of the owner. The law presumes the owner is aware of the vicious character of the animal. Animals
that are fara e naturae are regarded as unsafe in the face of and liability attaches irrespective of any lack of
savageness of the animal.

In Behreus and anor V Bertam Mills Circus Ltd, the defendants used an elephant in their circus. The
court imposed strict liability on them on the ground that it was far e naturae. The test for it is fara e naturae
depends on its potential to mankind. In England, wild animals are presumed to be dangerous. Ordinarily,
domesticated animals are excluded.

Scienter
Where an animal is harmless, the keeper is not liable unless he was aware or should have been aware of these
vicious characteristics. The plaintiff need not prove that the animal had done that particular kind of harm before
as long as it displayed traits to do the particular harm. Knowledge is imputed to the defendant where he
delegated to someone with full knowledge and control or where it was gained by a third party and communicated
to him. Liability is imposed on the keeper of the animal and not necessarily the owner. The defendant is not
liable where the plaintiff is liable for his own injury.

In Yesero Mugenyi V Zecuricor (U) ltd, it was held that a dog was animal marisuafe naturae and was not
within the class of wild animals. Before the owner could be held liable, it had to be shown that the particular dog
had a fierce nature and that such was known to the owner.
In Barry V Campbell, court held that anyone keeping an animal which he knows to be fierce does so at his
own risk and is liable for any damage by such animal when it escapes.
In Hussein Kijju V Bura Leso, it was held that there was no evidence that the bull was known to be savage or
to have the propensity fir attacking its own species. As the animal was a domestic breed, there was no
responsibility on the defendant to guard against unforeseen attack.

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In Buckle V Holmers, the defendant was unaware of cats’ mischievous tendencies. Court held that he was not
liable.
In Brock V Richards, court held that there wasn’t sufficient scienter. The plaintiff must prove that the
defendant was aware that the horse was prone to jumping on the highway.
In Knott V LCC, the plaintiff was a cleaner at one of the defendant’s schools. While doing her work at the
school, she was bitten by a dog belonging to and under control of the school keeper. It was held that as the
defendants had no control over the animal, they were not liable for its actions.

The defendant can raise several defenses as;

1. Action of God. In Bramwell B Nicholas V Marsland, it was stated, “There appears to be no reason why the
keeper of a savage animal, as contrasted with the keeper of other dangerous things, should be singled out as
such a mal-factor that he must be deprived of a defense which is allowed to them.

2. Action of stranger; If the harm is due to the act of a stranger, the owner is not liable provided he has done
everything he reasonably could be expected to do to prevent third persons from meddling with the animal.

Nuisance.
Nuisance is an activity or state of affairs that interferes with the use or enjoyment of land or rights over land or
with the health, safety or comfort of the public at large.

Private nuisance is a tort, protecting occupiers of land from damage to the land, buildings or vegetation or from
unreasonable interference with their comfort or convenience but excessive noise, dust, fumes, smells etc. An
action is only available to persons who have property rights such as owners, lessees or those with exclusive
occupation. As held and stressed in Hunter V Canary Wharf Ltd, lodgers and members of a property owner’s
family cannot sue in private nuisance.

Physical damage is actionable when the damage is of a type that is reasonably foreseeable and provided it does
not arise solely because the claimant has put his land to a hyper sensitive use. Interference with comfort is
actionable when it is considered unreasonable as judged by a number of factors, the most important of which is
the nature of the locality. The major remedies are damages and an injunction. Alternatively, there is a, limited
right to abate that is remove the nuisance. Where a statutory framework and remedy exists, the common law
action in nuisance does not arise.

In Nor Video V Ontario Hydro, an open air cinema sought an injunction in respect of interferences from the
flood light in a night race track. Court held that the abnormally sensitive use to which the plaintiff had put his
land did not warrant protection at the expense of others.

In Hollywood Silverfox Farm V Emmet, the defendant spitefully fired guns in close proximity to the
plaintiff’s breeding pens in order to cause his silver foxes to miscarry. Court held that the conduct was not
extremely unreasonable; it constituted a nuisance in light of the defendant’s action.

In Christie V Davies, the defendant who hammered and beat trays against a wall with intent of disrupting the
plaintiff’s music lesson was held to be liable in nuisance in spite of the fact that the noise was ordinary. Malicious
intent was the deciding factor.

In Warren V Brown, it was observed that damage for nuisance recovered by the occupier may be affected by
the size, commodiousness and value of his property but can’t be increased merely because more people are in
occupation and therefore suffer greater collective discomfort.

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Public nuisance is a crime and at common law includes activities as obstruction of the highway, carrying on an
offensive trade, selling food unfit for human consumption among others. The Attorney General or a local
authority may bring a civil action on behalf of the public much as a private citizen may obtain damages in tort if
h proves some special damage over and above that is suffered by the public at large.

In Kitamirike V Mutagubya, the plaintiff who parked his car along the road and was knocked by an over
speeding defendant’s car thereby causing damage was tasked to defend his claim by the defendant’s counter
claim that he had been negligent to park in the middle of the road. Court held that an obstruction of the highway
constitutes a danger to others and amounts to an actionable nuisance.

In Tindarwesire V Kabale Town council, the defendants were held liable in public nuisance for digging a
pit at a distance and so near to the footpath and omitting to put a warning about the possibility of danger which
eventually caused damage to the plaintiff.
In Harley V Esso Petroleum Co., the plaintiff was awarded damages for his damaged car, for the damage
caused to him was above and greater than what the general pubic suffered.

Occupiers’ liability.
An Occupier of premises is liable to persons who suffer injury by reason of the defective or dangerous state of the
premises while such persons are actually on the premises themselves. These persons fall into the following
categories;
a) Persons coming by permission, solely of their own choice.
b) Persons induced to come on business and interest of eth occupant alone.
c) Persons entering into premises without permission.
1. Licensee.
A licensee is a person who enters on premises under a license expressed or implied, from the occupier. That is, a
guest at a house. When a licensee is injured on land occupied by the licensor, he can only maintain an action
against his licensor when the danger through which he has sustained injury was one which the licensor knew but
of which the licensee was unaware. The licensor knows that if there is a dangerous object on his premises which
can be put to dangerous condition by third parties. This is so although the licensor could not know and did not
foresee the precise manner in which the dangerous condition could translate that into an accrual. If danger is
obvious license should look out for himself, take his own precautions. The occupier must not create new maps
without taking precautions to protect the licensee against them. That is, a person who knows the public is using
his ground should not put dangerous property which is likely to cause injury to persons crossing the grounds.
1. An Invitee.
An invitee is a person who is on the premises for some purpose in which he and the occupier have a common
interest. For instance, an intending customer entering a ship is an invitee. The duty of an invitor is to prevent
damage to an invitee from unusual danger. If an invitee acting reasonably and exercising due care for his own
safety does not appreciate the existence of the danger, or its nature, it will be to him an unusual danger. The
invitor may still be liable to the invitee for a danger of which the invitee was aware, but which he could not avoid
by the exercise of reasonable care on his part, unless the invitor can prove that the invitee was not only aware of
it but voluntarily accepted the risk.
They can be categorized into two;
i) Those who do not pay for their presence on the premises.
ii) Those who are on the premises on payment.

Those in (i) expect that the occupier shall on his part use reasonable care to prevent damage from unusual
danger which he knows or ought to know.

For those in (ii), where the occupier of the premises agrees for reward, that person shall have the right to enter
and use them for a mutual contemplated purpose, the contract between the parties contained an implied

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warranty that the premises are safe for that purpose as reasonable care or skill on the part of anyone can make
them.

However, the occupier’s liability Act 1957 has abolished the distinction between licensees and invitees. They are
all visitors. A visitor is any one who has the express or implied permission of the occupier to be on the premises
that is a guest to a dinner in a house. By this Act, an occupier owes the common duty of care to all visitors except
so far as he is free to and dose extend, restrict, modify or exclude his duty to any visitor.

Who is an occupier of premises?

The Act does not define an occupier and the rules of common law apply to determine whether one is an occupier
or not.

In Wheat V Lacon and co., the occupier was held to denote a person who has sufficient control of premises.
There is no need to have entire control of the premises – he neither needs to have an estate in the land in
question to be an occupier. The issue of whether one is an occupier depends on circumstances of each case. A
contractor may qualify as an occupier of premises. Permission to enter open premises maybe express or implied.
Implied consent is a question of fact to be proved by the one who seeks to rely on it that is premises open to the
public.

In Bakaboineki V Bunyoro district Administration, it was held that the open invitation to the general
public in the form of a circular was an implied invitation to the plaintiff and as such he was an invitee who was
owed a duty of care under the law.

In Lewery V Walker, court held that the occupier by his acquiescence in the use of his premises by the
trespasser had impliedly consented to such use and was liable to the plaintiff. However, the position was
changed by the decision in Edward V Railway executive where court held that repeated trespass does not
confer a license and the boy was held to be a trespasser. It should be noted that the duty owed to as visitor does
not extend to parts of the premises which he has no permission to go. In the Bakaboineki case, court held that
by fearing the open ground and crossing the footpath, the plaintiff was a trespasser.

Further, it should be noted that invitation to enter premises may be limited. In cases of implied consent, it
applies to areas where the visitor may reasonably be supposed or likely to go. In Mersey Docks and harbor
board, Lord Care stated, “When you invite a person into your house to use the stairs, you don’t invite him to
slide down the barristers.”

When the invitee is a child, the courts impose a higher standard on the occupier. Where a child trespasses as a
result of the occupier’s negligence, he is owed a duty of care as an invitee. An involuntary encroachment outside
the premises caused by the negligence of the occupier does not turn an invitee into a trespasser.

There is now a general duty to visitors which is to ensure that the premises are reasonably safe for the purposes
for which permission for their use was given. In determining this, the following factors should be taken into
account;
- Gravity and likelihood of the probable injury.
- The circumstances of entry on the premises.
- The nature of the premises.
- The knowledge which the occupier ought to have of the presence of property.
- Age of entrants.
- Ability of entrants to appreciate skills.

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It is notable that where the occupier has given notice to the visitor of the existence of the danger, he discharges
his duty to him. In Rolers V Nathan, court held that where an occupier of premises warned the chimney sweep
of fumes, he was not liable as occupier for injury as a result.

Where a visitor can’t avoid presence of danger, occupier is under a duty to remove it entirely in order to
discharge his duty. Where a visitor accepts risks, duty of occupier is discharged.

An occupier is not liable where a firearm/police assumes a specific risk. In Ashdown V Williams, court held
that she had assumed the risk and could not recover. The occupier has a duty to control the entrants from his
premises as for the safety of others. In Glasgow Corporation V Muir, the manager of a tearoom who allowed
picnickers to carry a tea carn was held liable when it scolded other entrants on the premises.

An occupier should be prepared for children to be less careful than adults and should guard them against all
ordinary risks. A child may see a warning but is incapable of comprehending it. In Phibbs V Rochester, court
held that although the standard of duty of the occupier is high, he is entitled to assume that the children will be
accompanied by adults who will warn them of any dangers on the premises. In Latham V Johnson, court held
that an occupier is under a duty not to lay traps to allure children to trespass in order to qualify as an allured.

Note be taken that it is not enough that the object in question is attractive; it must also have a character of
hidden danger. In Glasgow Corporation V Taylor, poisonous barriers in botanical gardens were held to
constitute an allurement to children.

Where a visitor is a contractor, the occupier may assume that he appreciated the dangers that are ordinarily
incidental to the job. Occupier would not be liable where the contractor himself chose an unsafe manner of
carrying out his duties and injured his employer.

In Ferguson V Welsh, where the contractor or entrant knows more about the work for which he requires the
premises then the occupier should ensure that it is suitable for such work. Note must be taken that where he
delegates to an independent contractor, he is not liable for negligence of the independent contractor. However
he must take reasonable care in selecting and supervising the independent contractor. However this is limited to
technical aspects of the premises that he is not expected to repair on his own. It has been held in Vial housing
commission that the cleaning of stairs was non technical and would not be delegated occupancy and activity
duty.

Trespassers.
A trespasser is anyone who enters premises without consent of the occupier or some privileged allowing him to
enter thereupon. Any conduct that gives the impression that others may enter the premises on the part of the
occupier amounts to implied consent.

In Edwards V Railway Executive, a person who enters premises as a lawful visitor may become a trespasser
by exceeding the limit of his permission outstaying his welcome or aiming improper use of the premises.

Brian Bwesigye and Najjuko Brenda; Dissecting The Law Between Neighbors