Professional Documents
Culture Documents
Tort Part 2
Tort Part 2
Public v Private
What is a
Nuisance?
Generally speaking, a nuisance concerns any source of
inconvenience or annoyance, but the tort of nuisance has
a more restricted scope and not every inconvenience or
History behind Nuisances
annoyance is actionable.
The word 'nuisance' is actually
old french for 'harms'
"... the person who brings onto his land and collects and
keeps there [in the course of a non-natural user of that
land) 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."
Facts
The lack of care on D's part is not conclusive. As has been said:
Held
Facts D was not liable. Per Lord Goff: "[In nuisance] it
D operated a tannery. Part of the tanning process is still the law that the fact that D has taken all
involved the use of a chemical, PCE. In transferring this
reasonable care will not of itself exonerate
chemical from the drums in which it was contained to
him from liability; the relevant control
the machines there was a regular spillage over the
years. The PCE sank through the earth and eventually
mechanism [is] found within the principle of
entered P's borehole over one mile away. It could not reasonable user. But it by no means follows
have been reasonably foreseen that the spillage that the defendant should be held liable for
would have caused an environmental hazard. R had to damage of a type which he could not
close the borehole and drill another at a cost of reasonably foresee ... foreseeability of harm is
£956.937. The issue was whether D was liable for this in indeed a prerequisite of the recovery of
nuisance.
damages in private nuisance."
EXAMPLES OF PRIVATE NUISANCE
Some examples of things to be included in actions for private nuisances are:
(2) Physical damage to P's land or property thereon by flooding, vibration or noxious fumes, Etc.
(3) Interference with P's comfort and convenience through the creation of smells, dirt, or noise, immorality
and even persistent telephone calls
But not the ordinary use of their premises by one's neighbours - Southwark LBC v. Mills et.al. [1999] 4 All E.R.
449.
Held
St. Helen's were liable in nuisance. Per Lord Westbury L.C.: "With regard to ... personal inconvenience and
interference with one's enjoyment, one's quiet, one's personal freedom, anything that discomposes or
injuriously affects the senses [or] the nerves, whether that may or may not be denominated a nuisance, must
undoubtedly depend greatly on the circumstances of the place where the thing complained of actually occurs
.... But when the result is a material injury to property... the submission which is required from persons living in
society to that amount of discomfort which may be necessary for the legitimate and free exercise of the trade
of their neighbours, would not apply to circumstances the immediate result of which is sensible injury to the
value of the property."
PERSONAL DISCOMFORT
HUNTER V. CANARY WHARF LTD., [1997] 2 W.L.R. 684 (H.L)
Facts
P claimed damages in nuisance from D for interference with the reception of television
broadcasts alleged to be caused by the presence of a tower built by P in an enterprise
zone. The tower was about 250 meters high and over 50 meters across. D contended that:
(i) interference with television reception as not capable of constituting an actionable
private nuisance. (ii) that they were entitled to rely on a defence of statutory authority, and
(iii) that in order to sue in private nuisance the plaintiffs had to establish a proprietary or
possessory interest in the land affected in order to have locus standi.
PERSONAL DISCOMFORT
HUNTER V. CANARY WHARF LTD., [1997] 2 W.L.R. 684 (H.L)
Held
Interference with television reception by the erection of a tall building was not capable of
constituting an actionable public or private nuisance since ... the erection of a building in
the line of sight between a television transmitter and other properties was not actionable as
an interference with the use and enjoyment of land ... "[A]n owner was entitled to build
on his land as he wished ... and was not generally liable, in the absence of an
easement or agreement, if his building interfered with his neighbour's enjoyment of
their land, and that, accordingly, since the interference with the plaintiffs reception
signals was the result simply of the presence of the building on the defendant's land
no action in private nuisance lay in respect of such interference."
Understand that personal
discomfort does not equate
to a nuisance. There must be
some damage done
NUISANCE
THE REASONABLE USER
"If I am the owner of an animal in which, by law, the right of property can exist, I am
bound to take care that it does not stray onto the land of my neighbour; and I am
liable for any trespass it may commit, and for the ordinary consequences of that
trespass; whether or not the escape of the animal is due to my negligence is
altogether immaterial."
PLEASE NOTE!!
Common LAw
Demonstrate a link between the animal's vicious propensity and the damage
caused
Show that the animal had the tendency to do the harm specified
Demonstrate that the defendant or his agents had knowledge of the animal's
vicious propensity
If the animal is domesticated (mansuete naturae) you must show that the
propensity of the animal leaned towards viciousness or hostility
PLEASE NOTE!!
Facts: The plaintiff was riding his jenny along a bridle track when the defendant’s jackass jumped
onto it in an attempt to serve it, causing injuries to both the plaintiff and the jenny. There was
evidence that on a previous occasion the jackass had attempted to serve the jenny while it was in a
lying position and had kicked it, and that the defendant knew about this
Held: the defendant was not liable, since the jackass, in attempting to serve the jenny, was merely
displaying a natural propensity.
Lewis JA said:
"The learned trial judge gave judgment for the defendant on the grounds that, first of
all, the donkey was a domesticated animal, and secondly, that for a jack to try to
serve a jenny was the mere exercise of a natural propensity; and that, even if this
were held to be a mischievous propensity, there was no evidence that the jack was
known to be in the habit of serving a jenny while it was being ridden."
LIABILITY FOR DOGS
Unlike the previous heads which were largely based on Common Law, liability surrounding dogs in
the Caribbean and Jamaica has been covered through statutory measures.
In Jamaica, the prevailing legislation used to be the Dogs (Liability for Injuries) Act which provided
strict liability for harm caused by dogs.
"The owner of every dog shall be liable in damages for injury done to any person, or
any cattle or sheep by his dog, and it shall not be necessary for the party seeking such
damages to show a previous mischievous propensity in such dog, or the owner’s knowledge
of such previous propensity, or that the injury was attributable to neglect on the part of such
owner."
LIABILITY FOR DOGS
However, in Jamaica, due to the spate of dog attacks, Jamaica passed An Act entitled The Dogs
(Liability For Attacks) Act, 2020 which repealed the previous Act
Facts: The plaintiff, a 12-year-old boy, brought an action to recover damages for injuries received
as a result of an attack upon him by the defendant’s dog. There was evidence that the dog had been
set upon the plaintiff by two small boys as they were walking down a public road
Held: strict liability was imposed by the Dog (Liability for Injuries) Law. The defence of 'act of a
stranger' was available only where the owner of the dog had done everything he could have done
to prevent third parties from meddling with it, which was not the case here.
SALMON V STEWART (1950) 5 JLR 236, COURT OF APPEAL, JAMAICA
Facts: The plaintiff was riding his bicycle along a public street when the defendant’s dog, which
was sitting on a wall beside the road, jumped on the plaintiff’s knee and caused him to fall off his
bicycle and fracture his foot. It was not known whether the dog intended to attack the plaintiff or
whether it was acting in frolic.
Held: the defendant was strictly liable under the Liability for Injuries by Dogs Law.
Carberry J:"
The section [2] does not merely relieve the plaintiff from the proof of scienter, that is, the
knowledge of the defendant of the mischievous propensity of his dog, but the section goes on to
relieve the plaintiff from proving negligence by the defendant, so that in, In this case, the injured
plaintiff need only prove that the defendant’s dog caused him injury and liability attaches to the
defendant
VICARIOUS
LIABILITY
Understanding
why blame can
be multifaceted
WHAT WE 1 Definition of Vicarious Liability
WILL
CONSIDER 2 Relationship of Control
In the
Relationship of
Tortious Act Course of
Control
employment
RELATIONSHIP
OF CONTROL?
Employer/Employee| Principal/Agent|
Vehicle Owners/Appointed drivers
Negligence/Recklessness/Criminal act
For vicarious liability to be possible, the tortious act must occur in the
course of employment. If the relevant relationship is not employer-
employee, then the same principle applies but in a modified form - so
an agent must be acting as an agent before vicarious liability can be
attributed to their principal, and a business partner must be acting in
their business capacity before their counterpart can be held jointly
responsible for their actions.
IN THE COURSE
OF EMPLOYMENT
Frolic of His Own/Authorised Activity
A master will not be vicariously liable for his servant’s tort unless the
plaintiff shows that the servant committed the tort during the course of
his employment. A tort comes within the course of the servant’s
employment if:
Key Terms
Defences
Exclusion of Liability
Limitation of Warnings
Liability to Trespassers
Defining Occupiers' Liability (Statutory Foundation)
"An occupier of premises owes a common duty of care to all
his visitors to ensure that they are reasonably safe in using
the premises to which they were invited or permitted to
enter. The exception to this is where the occupier extends,
restricts, modifies or excludes his duty to any visitor by
agreement or otherwise."
This rule was felt to be unduly harsh to trespassers, particularly ‘innocent’ ones,
such as playful children or wandering adults, and was altered in 1972 by the
leading case of British Rlys Board v Herrington. There, it was laid down that
whereas an occupier does not owe a duty of care to trespassers, he does owe a
duty of ‘common humanity’, or a duty to act ‘in accordance with common
standards of civilised behaviour’.
Common Humanity
Defined
"…if the presence of the trespasser is known to or reasonably to be anticipated
by the occupier, then the occupier has a duty to the trespasser, but it is a lower
and less onerous duty than the one which the occupier owes to a lawful
visitor… It is normally sufficient for the occupier to make reasonable
endeavours to keep out or chase off the potential or actual intruder who is
likely to be or who is in a dangerous situation. The erection and maintenance
of suitable notice boards or fencing, or both, or the giving of suitable oral
warnings, or a practice of chasing away trespassing children, will usually
constitute reasonable endeavours for this purpose… If the trespasser, in spite
of the occupier’s reasonable endeavours to deter him, insists on trespassing or
continuing his trespass, he must take the condition of the land and the
operations on the land as he finds them, and cannot normally hold the
occupier of the land or anyone but himself responsible for injuries resulting
from the trespass, which is his own wrongdoing."