Law For Property Professionals

Scenario 1

Issue

As per the given scenario, different issues are faced by two neighbours and as for this reason they claim each other in different cases. For instance, a retired woman, Gina keeps various types of pesticides for maintaining a sustainable food garden in her property area. As she stores the pesticides at the boundary fence that separates her boundary from that from that of her neighbour, Samuel. On the contrary, it has been seen that the stored pesticides have leaked out throughout the boundary fence onto the property of Samuel. As a result of this pesticide leakage, the prize grown roses in Samuel’s garden have been killed, which he planned to represent in a local village fete competition. It indicates that the property of Samuel has been damaged by the activity of Gina. In this particular scenario, the appellant would be Samuel while Gina would be the defendant.

On the other hand, it has also been seen from this same scenario that in order to develop the sustainable food firm, Gina has brought chickens and a cockerel and let them roam within the garden freely. It has been claimed by Samuel that the crowning of the cockerel disturbs him throughout the day and this noisy bird has made the man fed up. In order to take revenge, Samuel starts to play very loud rock music all the time once the cockerel crows. In this particular scenario, both Gina and Samuel feel disturbed by each other’s activities.

Rule

The law of Tort is a wide-ranging body of obligations, remedies and rights applied by the courts in terms of civil proceedings (inbrief.co.uk, 2021). The English Tort law focuses on the harms of the rights of people to their property, health and safety, economic interests, reputation, clean environment and so on. There are different types of torts that are judged based on the types of relevant tort laws. These are as follows.

Tort of negligence

The negligence tort consists of four elements including duty breach, duty of care, damages and causations (lexisnexis.co.uk, 2021). The actions for negligence are taken under common law in certain circumstances. For example, when the defendant owns any duty of the claimant, when the defendant breaches any duty of the claimant and when any damage of the claimant caused by the defendant, the law of negligence tort is applied. In this particular context, Law Reform (Contributory Negligence) Act 1945 is applied to determine whether the appealed case is approved or not in the area of negligence tort. As per this Act, when an individual suffers any damage as a result of both his/her own fault and fault of other individuals, such damages cannot be defeated because of the claimant’s own fault (legislation.gov.uk, 2021). However, in such cases, mostly the damages are recovered partly by the defendants.

Trespass Tort to land

The Trespass tort to land considers the cases where an individual’s activity causes entry into the property or land of another individual either intentionally or unintentionally without justification or permission (lexisnexis.co.uk, 2021). On the other hand, in order to commit the tort, it is not necessary to cause any harm by the defendant. In the UK, this tort is mainly handled with the application of Criminal Justice and Public Order Act 1994 (legislation.gov.uk, 2021). Section 68 under this Act addresses that activity of an individual on any occasion on a part of another individual’s land is lawful when the person is involved in the occasion with permission and without committing any trespassing to land offence (legislation.gov.uk, 2021). From this context, it has been understood that using or entering into another person’s land without permission is considered a crime as per the above-mentioned act.

Nuisance Tort

Nuisance tort is considered in a case where an unreasonable or unwarranted discomfort or annoyance to a person is created by another individual which further results in damage or interference of the property (lexisnexis.co.uk, 2021). Similarly, when an enjoyment of a person’s own land causes interference to others, it is also considered as nuisance tort. There are mainly two types of nuisance torts including private nuisance and public nuisance. Private nuisance aims to protect an occupier’s right in terms of unreasonable interference or comfort with the use or enjoyment of other people (e-lawresources.co.uk, 2021). In such a nuisance, the property of a person can be injured or damaged by another person. It has been seen that this nuisance tort mainly occurs in the cases of neighbours and the law of this tort makes a balance between the rights of landowner and the neighbours in enjoying their own land without interfering or damaging others. On the contrary, public nuisance can be caused by such acts that endangers the comfort, property, health or morals of the public and due to this reason, it is considered as   actionable in tort and criminal offence in certain cases (wiglaw.co.uk, 2021). In this particular context, the Noise and Statutory Nuisance Act 1993 Act is applied to solve any nuisance related cases. Section 79 of this act states that any activity to make provisions in a street is considered as statutory nuisance (legislation.gov.uk, 2021). As noise causes discomforts or interference to other people, loud musing with the operations of loudspeakers or vehicles are considered as public and, in many cases, private nuisance.

Liability Tort for Animals

The Tort law strict liability is applied for any damages caused by animals. As per this law, the owners or keepers of the animals, are strictly liable for any damages caused due to the trespass of their animals on others’ property (jrank.org, 2021). It has also been noticed that without negligence of the owners, there is less chance of their pets’ trespass. In this particular context, the Animals Act 1971 is applied. As per this particular act, the keepers of any animals or livestock are strictly liable to any damage or trespass of that animals into others’ land (legislation.gov.uk, 2021). From this point of view, it can be stated that any damage or interference caused by any livestock or animal is considered a tort of liability for animals.

Application

On the basis of the identified issues from the given scenario, it has been understood that certain torts have taken place in this case. For instance, the occurrence of pesticide leakage can be considered as tort of negligence as well as tort of trespass to land. In a previous case of Transco plc v Stockport MBC [2004], it has been seen that the gas pipe of claimant (Transco plc) was collapsed and became unsupported due to leakage in the waterpipe of Stockport MBC (e-lawresources.co.uk, 2021). This damage also indicates the need for a costly immediate remedial work. This case was considered as a tort of negligence. The reasons for this case are also similar to the case of Samuel and Gina. Therefore, it can be stated that the law of negligence tort can be applied here. Apart from that one of the most landmark and famous cases, Rylands v Fletcher [1868],shows that the defendant owed a mill and assigned contractors to construct a reservoir on its properly or land. During the construction, instead of sealing the found unused mine, the contractors filled the mine with water and as a result weather from the reserves filtered through the unused mine and then spread to the working mines (e-lawresources.co.uk, 2021). It caused extensive damage to the claimant who was the owner of the working mine. In this particular case, primarily in the first verdict, it was decided by the court that Ryland (claimant) is completely liable for the damage for Fletcher. On the contrary, in the second verdict, it has been said by the court that the defendant (Fletcher) also has a duty of care towards the risk associated with the unnatural use of land although it was not harmful at the time of constructing the mine. As for this reason, this case is considered as a negligence tort. Considering both these two cases, it can be stated that Gina has caused negligence with the occurrence of pesticide leakage. In this concerning case, this negligence has caused damage to roses. Hence, the tort law needs to be applied here.

On the other hand, the case of Rylands v Fletcher [1868], also indicates a tort of trespass because, in this case, the defendant’s land use caused issues or interference to the Ryland (e-lawresources.co.uk, 2021). In a similar context, in the case of Gina and Samuel, the pesticides have spread onto the land of Samuel which indicates the use or damage of other land without justification for permission. Hence, the present case can also be considered as a tort of trespass.

Data Analysis and Findings

As discussed above, nuisance tort is about the damage of property of an individual by other activities. For instance, it has been seen in a previous case of Jost v. Dairyland Power Coop. – 45 Wis. 2d 164, 172 N.W.2d 647 [1969], that the crops of the claimant were damaged due to sulphur production by the defendant in its power production princess (core.ac.uk, 2021). As for this reason, this case was considered under the law of nuisance tort. Similarly, as in the present case, roses of Samuel’s gardenhave been damaged due to pesticide leakage of Gina, this present case can also be considered as a nuisance tort. Apart from that the case of Rylands v Fletcher [1868], also indicates a tort of nuisance as the use of land has caused damage to others (e-lawresources.co.uk, 2021). Similarly, in the case of Wheeler v JJ Saunders [1995], the claimants claimed against the defendant for nuisance tort due to smell and noise emerging from the farmhouse (e-lawresources.co.uk, 2021). Apart from that in another case of Budd v Colchester Borough Council: QBD [1996], it has been seen that claimants appeal a case notice against the defendant of nuisance tort due to the dog barking (swarb.co.uk, 2021). As the level of barking was not mentioned in the notice, it was dismissed. Similarly, as the level of crowing of the cockerel is not specified, it cannot be a strong nuisance tort while the loud music played by Samuel can be a nuisance tort.

Apart from that, it has also been that the activities of Cockerel of Gina cause discomfort to Samuel. Similarly, in a previous case of Ellis v Loftus Iron Co [1874], the horse of the defendant (Loftus) kicked the mare of the claimant (Ellis) through the wire fence by crossing the boundary (swarb.co.uk, 2021). In the judgment, it has mentioned that the defendant is strictly liable to the trespass or damage of their pets, livestock or cattle. On the contrary, it was also mentioned by the judge, Lord Coleridge CJ, in this case that it would not be considered as trespass until the defendant walks minimum half a mile on the land of the plaintiff unlawfully. As a result, the appeal of the claimants as a form of trespass tort was dismissed. From this point of view, it can be stated that although the issue of cockerel’s crowing is a tort of nuisance, it is not the tort of trespass. However, this issue can be considered as a liability of the animals’ tort as Gina neglected that her livestock can create discomforts to others.

Analysis On External Judicial Practice And Internal Governance Mechanism

Similarly, in another case of Sycamore vs. Ley [1932] 147 LT 342, it has been seen that due to the plaintiff’s teasing, a dog attacked the person which caused injury. This particular case was considered as a strict liability tort for animals (canlii.org, 2021). Aligning this previous case, it can be stated that in the case of Gina and Samuel, the cockerel has neither passed the boundary nor attacked, injured or damaged the health or property of Samuel. On the contrary, as revenge, Samuel started to play loud music. It indicates that no one of these two neighbours have been affected by their activities while they felt discomfort. Hence, it can be stated that it would be a weak legal aspect or tort in this context.

Conclusion

Considering all of the cases and rules, it can be concluded that the Gina has created a tort of primate nuisance, trespass, negligence as well as lability to animals. On the other hand, Samuel is also responsible for tort of private nurses in terms of noise creation. In this particular context, all of the above-mentioned Acts under tort law can be applied here to suggest the rights of both Samuel and Gina. In this particular context, the occurrence of pesticide leakage can be considered under the tort of nuisance, negligence as well as trespass. Additionally, the crowing can be a weak legal offence of liability to animal tort. On the other hand, playing loud rock music can be judged under private nuisance tort.

Scenario 2

Issue

The scenario shows that an eleven-year-old child, Claire, crawled through the gap of a wire fence to explore ShineBright when it was remodified. Due to this re-modification work, the entire building was partitioned with wire fence and a small warning notice affixed at the top of the barbed wire fence. Being a child, she ignored the notice and entered the building and as a result the drill fell down from the top stair. However, her right leg was broken in this way. This scenario indicates an issue related to negligence from both ends.

Rule

Negligence tort

It occurs when an individual or organisation breaches a specific duty of care which is owed by them and it causes any damage or injury to the opposite person (professionalnegligenceclaimsolicitors.co.uk, 2021). The result of any careless behaviour is also considered as negligence. As per the law of negligence, it is necessary to prove the four aspects of negligence including breach, duty, caution and damage (lexisnexis.co.uk, 2021). Law Reform (Contributory Negligence) Act 1945 is applied under the negligence tort in the UK (lexisnexis.co.uk, 2021).

Application

As per the above-mentioned scenario, both Claire and the organisation have created tort of negligence and as a result, a damage has occurred to the child. In a previous case of Read v Lyons [1947] AC 156 House of Lords, the claimant was employed in the defendant’s factory where an explosion occurred (e-lawresources.co.uk, 2021). This explosion killed one employee and injured the rest of the employees. In this particular case, there was no evidence regarding the negligence of the defendant and as a result the House of Lord dismissed this appeal. In this case, it was stated that the claimant needs to escape from dangerous occurrences and as a result, the defendant succeeds in this case. Taking this case into consideration, it can be stated that in the case of ShineBright, although the building was surrounded with a wire fence and a warning board was hung, the child entered the building and got injured. Here, there is no such negligence issue from the end of ShineBright. On the other hand, in the case of Master Caine Ellis v Mr Paul Kelly and Mrs Violet Ellis [2018], the claimant (Caine), an eight years old child, ignored the condition of road and left the park by themselves without any permission of any adult person (anthonygold.co.uk, 2021). As a result, the child was involved in a road traffic accident. In the judgment of this case, no evidence was found against the defendant that there was a mis-adjustment of the vehicle’s speed. On the contrary, negligence was related to the child and his parents. In this similar context, ShineBright has taken enough precautions to protect people from the danger. On the contrary, the child has shown negligent behaviour. Therefore, this present case indicates a tort of negligence.

However, it can also be stated that the authority of the ShineBright has taken precautions for only the adult people and not for the children. In this particular context, along with a wire fence and warning board, it was also needed to assign a person for guarding this building. It can also be considered as a negligence tort from the end of ShineBright. From this point of view, it can also be sated that Law Reform (Contributory Negligence) Act 1945can be applied in this case. In this way, it can be possible to find out the actual rights of both the child and the organisation.

Conclusion

It can be concluded from the overall case analysis that the child has neglected the warnings given by the ShineBright and as a result, she was injured. It can be resolved under the law of negligence. Apart from that as there was a gap in the wire fence and a lack of precautions for children, it can also be considered as a negligence tort. From both of these perspectives, it can be stated that Claire’s activity is related to negligence. In this context, both the parties need to be attentive in their activities that would not cause any damage of own and others as well.

References

Scenario 1

canlii.org (2021) Sycamore vs. Ley (1932) 147 LT 342, Available at: https://www.canlii.org/en/commentary/doc/1992CanLIIDocs99#!fragment/zoupio-_Toc3Page5/BQCwhgziBcwMYgK4DsDWszIQewE4BUBTADwBdoAvbRABwEtsBaAfX2zgGYAFMAc0ICsASgA0ybKUIQAiokK4AntADkykREJhcCWfKWr1m7SADKeUgCElAJQCiAGVsA1AIIA5AMK2RpMACNoUnYhISA [Accessed on: 11th December 2021]

core.ac.uk (2021) Jost v. Dairyland Power Coop. – 45 Wis. 2d 164, 172 N.W.2d 647 (1969), Available at: https://core.ac.uk/download/pdf/287297674.pdf [Accessed on: 9th December 2021]

e-lawresources.co.uk (2021) Rylands v Fletcher [1868] UKHL 1 House of Lords, Available at: http://www.e-lawresources.co.uk/cases/Rylands-v-Fletcher.php [Accessed on: 9th December 2021]

e-lawresources.co.uk (2021) The Tort of Nuisance, Available at: http://www.e-lawresources.co.uk/Nuisance.php [Accessed on: 9th December 2021]

e-lawresources.co.uk (2021) Transco plc v Stockport Metropolitan Borough Council [2004] 2 AC 1 House of Lords, Available at: http://e-lawresources.co.uk/cases/Transco-plc-v-Stockport-Metropolitan-Borough-Council.phpn [Accessed on: 10th December 2021]  

e-lawresources.co.uk (2021) Wheeler v JJ Saunders [1995] 3 WLR 466 Court of Appeal, Available at: http://www.e-lawresources.co.uk/cases/Wheeler-v-JJ-Saunders.php [Accessed on: 9th December 2021]

inbrief.co.uk (2021) The Law of Tort, Available at: https://www.inbrief.co.uk/claim-preparations/the-law-of-tort/ [Accessed on: 11th December 2021]

jrank.org (2021) Strict Liability, Available at: https://law.jrank.org/pages/10551/Strict-Liability.html[Accessed on: 11th December 2021]

legislation.gov.uk (2021) Animals Act 1971, Available at: https://www.legislation.gov.uk/ukpga/1971/22/contents [Accessed on: 10th December 2021]

legislation.gov.uk (2021) Criminal Justice and Public Order Act 1994, Available at: https://www.legislation.gov.uk/ukpga/1994/33/contents [Accessed on: 9th December 2021]

legislation.gov.uk (2021) Law Reform (Contributory Negligence) Act 1945, Available at: https://www.legislation.gov.uk/ukpga/Geo6/8-9/28 [Accessed on: 10th December 2021]

legislation.gov.uk (2021) Noise and Statutory Nuisance Act 1993, Available at: https://www.legislation.gov.uk/ukpga/1993/40 [Accessed on: 8th December 2021]

lexisnexis.co.uk (2021) Negligence—key elements to establish a negligence claim, Available at: https://www.lexisnexis.co.uk/legal/guidance/negligence-key-elements-to-establish-a-negligence-claim  [Accessed on: 10th December 2021]

lexisnexis.co.uk (2021) Private nuisance—general principles, Available at: https://www.lexisnexis.co.uk/legal/guidance/private-nuisance-general-principles [Accessed on: 9th December 2021]

lexisnexis.co.uk (2021) The tort of trespass to land, Available at: https://www.lexisnexis.co.uk/legal/guidance/tort-the-different-types-of-tort [Accessed on: 10th December 2021]

swarb.co.uk (2021) Budd v Colchester Borough Council: QBD 1996, Available at: https://swarb.co.uk/budd-v-colchester-borough-council [Accessed on: 9th December 2021]

swarb.co.uk (2021) Ellis v Loftus Iron Co: 1874, Available at: https://swarb.co.uk/ellis-v-loftus-iron-co-1874/  [Accessed on: 10th December 2021]

wiglaw.co.uk (2021) PUBLIC NUISANCE, Available at: https://wiglaw.co.uk/unreasonable-interference/ [Accessed on: 9th December 2021]

Scenario 2

anthonygold.co.uk (2021) Master Caine Ellis v Mr Paul Kelly and Mrs Violet Ellis on 31 July 2018. case summary, Available at: https://anthonygold.co.uk/latest/blog/can-an-8-year-old-child-be-contributory-negligent/ [Accessed on: 11th December 2021]

e-lawresources.co.uk (2021) Read v Lyons [1947] AC 156 House of Lords, Available at: http://www.e-lawresources.co.uk/cases/Read-v-Lyons.php [Accessed on: 10th December 2021]

lexisnexis.co.uk (2021) Negligence—key elements to establish a negligence claim, Available at: https://www.lexisnexis.co.uk/legal/guidance/negligence-key-elements-to-establish-a-negligence-claim  [Accessed on: 7th December 2021]

lexisnexis.co.uk (2021) The Law Reform (Contributory Negligence) Act 1945 and other liabilities, Available at: https://www.lexisnexis.co.uk/legal/commentary/halsburys-laws-of-england/damages/the-law-reform-contributory-negligence-act-1945-other-liabilities [Accessed on: 6th December 2021]

professionalnegligenceclaimsolicitors.co.uk (2021) Key Negligence Case Law, Available at: https://professionalnegligenceclaimsolicitors.co.uk/landmark-famous-uk-tort-cases-advice/ [Accessed on: 8th December 2021]

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