TORT complete revision booklet PDF

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Includes content that need to know, cases to help and academic commentaryTopic 1: nuisance 2 types, namely public and private nuisancePrivate nuisance P Winield ‘Nuisance as a tort’ (1931) – ‘unreasonable interference with a person’s use or enjoyment of land, or some other right over or in conneci...

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Law of Tort complete revision booklet Includes content that need to know, cases to help and academic commentary

Topic 1: nuisance  2 types, namely public and private nuisance Private nuisance  P.H Winfield ‘Nuisance as a tort’ (1931) – ‘unreasonable interference with a person’s use or enjoyment of land, or some other right over or in connection with it’’  Whilst Donoghue v Stevenson says we ought to have our neighbour in contemplation, nuisance looks at what qualifies as good neighbours and what reasonable use of land is  Concerns what you should be able to do with land and what you should be expected to put up with  Lawton LJ in Kennaway v Thompson - ‘Nearly all of us living in these islands have to put up with a certain amount of annoyance from our neighbours... Intervention…is only justified when the irritating noise causes inconvenience beyond what other occupiers…can be expected to bear.’  3 types of private nuisance: physical interference, intangible interferences and physical encroachment Physical interference  D’s act = physical damage/injury to C’s land, C’s interest in land or things growing on or affixed to C’s land  Structural damage by vibrations – Sturges v Bridgman  D fixing posters or inscribing graffiti - City of London v Samede  Leakage or spread, i.e. sewage - Cambridge Water v Eastern Countries Leather Intangible interference  D’s act causes intangible interferences that cause discomfort or inconvenience to C’s use / enjoyment of land  Odours - Barr v Biffa Waste Services  Noises – Coventry v Lawrence  Smoke, dust, fumes - Anthony v Coal Authority

 Activities on neighbouring land that are highly visible – Lippatt v South Gloucestershire Physical encroachment  D does not create a natural hazard but allows or causes it to interfere with C’s enjoyment of his land  Tree roots – Delaware Mansions v Westminster CC  Floor or fire spreading from D to C’s land – Green v Somerleyton  Mosquitos or biting insects flying from D’s property – Dobson v Thames Water Utilities Who can sue?  Only have standing if have ‘sufficient proprietary interest’ as in Hunter v Canary Wharf, this reminds us it is a land based tort  So, in order to have standing, you need interest in the land.  So, owners and those with exclusive possession  Traditional approach = no proprietary interest means no claim as in Malone v Laskey  Slight departure from traditional approach in Khorasandijan v Bush, but we see the Court still not find proprietary interest as no proprietary interest.  Traditional approach overruled by Hunter  Hunter v Canary Wharf – reaffirmed Malone v Laskey and held no nuisance when lawful use of property interrupts neighbour’s TV signals, and only those with proprietary interest / exclusive possession can sue  Scope for criticism on Hunter being too harsh. People are asking if the rule of needing proprietary interest is a bit harsh. It can appear a bit Dickensian and backwards when tort should really be going forward In Pemberton v Southwark harshness of rule was mitigated and when C became trespasser due to falling into arrears with rent, she still had standing for presence of cockroaches due to exclusive possession  Academic commentary on Hunter v Canary Wharf John Wightman says in ‘Nuisance – the environmental tort? Hunter v Canary Wharf in the House of Lords’ (1998), that the HL decision to confine the action in private nuisance to those with an interest in land obstructs further recognition of environmental harms by tort. It prevents

lawful users of land from protecting such uses and inhibits the tort from reflecting the changing nature of interests in relation to land  Scope for ECHR aspects on who can claim in tort Khatun v UK - pollution of the area by dust caused by building works in the Docklands area. ECtHR said there is no distinction between those with and those without proprietary interests in land for the purposes of Art.8 ECHR. In McKenna v British Aluminium – Neuberger J considered possibility of extending the standing rule Most recently in Dobson v Thames Water Utilities – C who claims damages for nuisance, is unlikely to claim additional damages under HRA 1998. But C who does not bring claim in nuisance, may be able to bring a claim for damages under HRA in respect to art 8 violation

Who can be sued?  D, usually creator / sustainer of nuisance  D does not have to occupy land from which nuisance emanates. If its your land you have responsibility, Thomas v Gibson  If nuisance creator cannot be traced, C can issue proceedings against occupier or landlord  Occupier: can sue occupier - when occupier has control over land – Mantania v Provincial Bank, vicarious liability for independent contractors in cases of nuisance - occupier was in control of property – Cocking v Eacott - occupier adopts of continues a trespasser’s nuisance - SedleighDenfield v O’Callaghan, person who creates a nuisance is as liable as someone who creates it - occupier adopts or continues nuisance created by act of nature – Goldman v Hargrave, D liable for not removing tree struck by lightning - creator of nuisance is occupier’s predecessor in title – St Anne’s Well Brewery v Roberts, liability for occupier started by previous occupier if new one knows about nuisance and does nothing What makes a nuisance?

 Hunter v Canary Wharf said you can reasonably use your land, so you can do as please as long as it is reasonable  St Helen’s Smelting Co v Tipping, Lord Westbury distinguished between physical damage and emanations  If nuisance causes physical damage to C’s property = court almost certainly decide it has caused nuisance  If nuisance leads to emanations (noise, dust, light) which affect C’s enjoyment of land = court consider other relevant factors  If do not have black and white physical damage, we look at: intensity of interference, nature of locality, bad intention of D and sensitivity of the C Intensity of the interference  WHAT is the nuisance, HOW BAD is it and HOW LONG have you been suffering?  Kennaway v Thompson – nuisance here increased over time, C paid backward and forward damages  Duration and frequency are to be looked at – Cunard v Antifire, Talbot J said that private nuisances are interferences for a substantial amount of time  Can twin Cunard with De Keyser’s Royal Hotel v Spicer Bros where temporary building work was a nuisance and Crown River Cruises v Kimbolton Fireworks where 20 mins of fireworks was a nuisance Nature of locality  What would be a nuisance in Belgrave Square would not necessarily be a nuisance in Bermondsey – Thesiger LJ in Sturges v Bridgman  Absence of complaints may make a claim more difficult – Murdoch v Glacier Metals  Cannot apply hindsight, cannot say ‘what a lovely place this used to be  Nature of locality may change over time; planning permission can provide defence only when it has effect of changing the nature of locality  Coventry v Lawrence - Supreme Court that the fact that planning permission has been granted does not mean that the relevant activity is lawful and is therefore of no assistance to the defendant. The issue of common law nuisance is reserved to the court rather than the relevant planning authority. Case held that planning permission can only function as evidence of character of locality, but is not constitutive thereof [96]

 Gillingham BC v Medway Dock – planning permission showed intention to regenerate / change locality, makes nuisance claim more difficult but will never clean hands by proxy  Scope for academic commentary on locality principle:  A.Beever says in ‘The Law of Private Nuisance’ (2014) that a consequence of the locality principle is that the permissible level of interference with a person’s land may vary, which gives rise to concern that people may enjoy unequal rights  Locality principle can be good as it provides an incentive for people to locate their activities in suitable locations – as said in 1955 by J.H.Beuscher and J.W.Morrison in ‘Judicial Zoning through Recent Nuisance Cases’ Bad intention of D  Christie v Davey – D made noise in a malicious way, so his behaviour was a nuisance  If you create a nuisance in retaliation to a nuisance, you lose ability to sue  Hollywood Silver Fox Farm v Emmett – motivated by malice here, so despite abnormal sensitivity = nuisance Abnormal sensitivity  D’s conduct must affect ordinary person  Recreational activity: in Bridlington Relay v Yorkshire Electricity a recreational activity renders C’s activities abnormally sensitive, therefore beyond the capacity of tort to provide a remedy (Robinson v Kilvert)  2 sides to this factor: abnormally sensitive person and abnormally sensitive use  If something has an abnormally sensitive use then D not liable, as seen in Robinson v Kilvert where abnormally sensitive paper was the subject  McKinnon Industries v Walker – abnormally sensitive use  Heath v Mayor of Brighton – special requirements of church to be quiet does not impose higher standards for neighbour Defences for nuisance  Statutory authority – you have something in place like statute for the nuisance to happen, full defence,

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Allen v Gulf Refinery Ltd – HL held to not allow such defence would sacrifice utility Human rights? – when interpreting statutes with contain authority, regard must be had for human rights Hatton v UK – C’s did not have proper chance to challenge decision, but rights here had not been infringed Prescription – C has put up for nuisance for 20+ years, barred from claiming, clocks start running when C becomes aware of the activity that is causing the nuisance Sturges v Bridgman – 20 year prescription did not apply here as C came to nuisance Ineffective defences – coming to the nuisance, Bliss v Hall However, for coming to the nuisance defence note the following: Supreme Court judgement in Coventry v Lawrence said that a change to the purpose of D’s premises might make coming to the nuisance an effective defence. Nuisance is a notionally a tort of strict liability and the task of taking reasonable steps to prevent an interference with C’s right to enjoy land is no answer – Rapier v London Tramways Adams v Ursell and Dennis v Ministry of Defence – ‘utility’ defence, so i.e. social utility of say a business, is ineffective in the context of nuisance

Remedies  Court trying to make things right  Injunctions – equitable remedy, discretionary, usually curtailing of activities Injunction awarded unless damages more suitable, Shelfer v City of London Electric Lighting where this criteria was looked at… 1. Injury to C’s legal right is small 2. Injury is capable of being estimated in monetary terms 3. Injury is on which can be adequately compensated by a monetary payment 4. Be oppressive to grant injunction  Abatement – self-help, generally applies in encroachment cases, Lemmon v Webb – neighbour cut back overhanging branches  Damages – financial, where nuisance caused C physical discomfort and impacts their enjoyment of land, the level of damages calculated by

making reference to property’s drop in value during period in which nuisance persists Does not apply to personal injury (Hunter) May be awarded for damage to chattels

Topic 2: Rylands v Fletcher  Similar to nuisance but refers to isolated escapes. If happened repeatedly it would be nuisance  Form of strict liability  Rule under Rylands created a new strict liability in tort where other land based torts could not act  A.J. Waite in ‘Deconstructing the Rule in Rylands v Fletcher’ (2006 ) looks at why Blackburn J considered strict liability as the norm and fault liability as the exception. He then questions why there should be a decision in favour of SL, given the advances in negligence. But then counter argues with this the fact that this may have been due to progressions in 19th century of industrial revolution and public concern of bursting reservoir dams.  Professor Newark (1949) also speaks in the area of Rylands v Fletcher but he criticises and says the boundaries of nuisance have become fogged. Rylands should be a simple case of nuisance, but they wrongfully made it an exceptional case. Who can sue?  C must have proprietary interest in the affected land  Cambridge Water  Personal injury not recoverable, courts have shown weakness here though Who can be sued?  Occupier of land from which escape took place  This rule also applies to person who brings on his lands and collects and keeps the thing in question – as per Blackburn J in Rylands v Fletcher Rylands v Fletcher  Blackburn J established 4 key ingredients under the rule

 D brings something onto his land that is likely to do mischief, that thing escapes, thing must constitute non natural use of land, resulting damage must be foreseeable to D D brings onto land something likely to do mischief  Must be voluntary act (Giles v Walker – no liability for things that occur naturally on the land)  Requires evidence D brought something onto land voluntarily  Brought on also means kept on  That thing does not need to be ultra-hazardous per se, it must be capable of causing damage if escapes  Rylands – water  Hale v Jennings Bros – fairground ride (and passenger)  National Telephone v Barker – electricity  Rainham Chemical Works v Belvedere Fish Guano – explosives  Mulholland v Baker – oil  Stannard v Gore – did not apply to tyres  Courts don’t want this stage to be easily satisfied, Lord Bingham said in Transco v Stockport that it must be shown that D had done something which he recognised, or judged by standard appropriate at the relevant place and time, he ought reasonably to have recognised, as giving rise to an exceptionally high risk of danger or mischief if there should be an escape however unlikely an escape might be thought of’ That thing escapes  Escape = ‘thing; that causes damage moves from D’s premises to place outside of D’s control  Read v Lyons – no escape here as explosion happened in confides of land of owner, no Rylands  There was also no escape in Transco v Stockport  Intention releases of things can qualify as escapes if they were not aimed in direction of C – Crown River Cruises v Kimbolton Fireworks  When thing accumulated on land is different to thing that escapes? In Stannard v Gore, tyres caught fire due to faulty electrics and way stored, fire broke onto neighbouring land, Rylands applied because of way thing was haphazardly stored

That thing must constitute ‘non-natural’ use of D’s land  Non-natural use of land = in Transco was extraordinary and unusual use of land  Rules does not apply to damage caused by anything that occurs naturally on D’s land (Giles v Walker)  Lord Goff said in Cambridge Water that large quantity of chemicals is a ‘classic case’ of ‘non-natural user’  Key case here is Cambridge Water v eastern Countries Leather – Lord Kennedy looked at ‘non-natural’ and said for a claim to succeed under Rylands the use must not merely be the ordinary use of the land or such use as is proper for the general benefit of the community.  In Cambridge, there was a benefit to community by creating jobs etc, so claim failed here  In Transco, was natural use of land by piping water to a block of flats in urban area, Rylands unsuccessful Resulting damage (not escape itself) must have been foreseeable to D  Added by Lord Goff as a 4th control mechanism in Cambridge Water  Must be foreseeable that the dangerous thing will cause damage if it escapes  Escape itself does not need to be foreseeable, Transco v Stockport  Northumbria Water v Sir Robert McAlpine – foreseeability needed for claim and unforeseeable that concrete would seep into sewers and cause such damage as per Moore-Bick LJ

Defences?  Volenti/consent of C – C’s consent to dangerous thing on land is defence  Contributory negligence – C’s damages may be reduced where C’s actions help to cause escape of dangerous thing  Statutory authority – defence if escape of dangerous thing is connected to something D is authorised to do under statute  Act of a stranger – no liability where escape is due to actions of stranger, but this does not mean 3rd party must be unknown to D Defence unsuccessful when D should have foreseen 3rd parties’ actions and taken precautions against them – Northwestern Utilities v London Guarantee

Boxx v Jubb – no liability, 3rd party flooded D’s land which flooded C’s Rickards v Lothian – wrongful act of third party and no non-natural use of land, so no Rylands here  Act of nature/God – Nichols v Marsland  C’s default – wholly or partially C’s fault Ponting v Noakes – C’s horse died from eating D’s yew tree, no escape as tree completely in confines of D’s land Law Reform (Contributory Negligence) Act 1945 s1 – damages reduced if damage is partially or fully C’s fault

Remedies  See nuisance remedies  Note that injunctions less likely as Rylands refers to isolated escapes!

Topic 3: strict liability for defective products  Strict liability = imposition of liability which does not depend on actual negligence / intent to do harm  Fault is removed  There are different forms of strict liability, we are looking at strict liability for defective products  This is presided by fault-based common law (tort) and strict liability based statute (Consumer Protection Act 1987 = CPA)  2 pillars of law that enables C’s to claim damages for defective products. 1 pillar is strict liability based. The common law (tort of negligence) is the to go to when a C is damaged by defective products. But bear in mind, C can claim under both, two actions can be launched simultaneously under common law of tort of negligence and the CPA. Why was it introduced?  Important to see why CPA was introduced  In order to enable claimants to be more successful at mounting claims against manufacturers  It is supposed to be an easier avenue of address

Common law (tort of negligence)  Duty of care -Donahue v Stevenson provides general concept of DoC, must reasonably foresee that we take care not to cause harm to another through our actions Courts were willing to apply neighbour principle to products that consumers rely on. When Donoghue was decided and in the years after, society became more commercialised, with new [sometimes harmful] products hitting the shelves  Breach – D must be expected to show he has fallen below standards expected of him In relation to defective products, usually very difficult for C to show that the D manufacturer is at fault. WHY? Accessing information to support their case, i.e. info about production etc, is difficult to maintain. Even the manufacturer may not know this information. Grant v Australian Knitting Mills – C not required to show what went wrong in manufacturing process, it can be inferred in defective product cases. Courts willing to apply res ipsa loquitur to manufacturing defects  Causation / remoteness - If the negligent manufacturer can reasonably expect intermediate inspection would have identified the defect before use, they can argue that the chain of causation is broken. Hurley v Dyke – “sold as seen with all its faults” discharged the seller’s duty  The convention of interfering negligence is only applicable to manufacturing defects (i.e. cases where the defect has clearly been caused by a problem in the manufacturing process. It is not as straightforward in cases of ‘design defects’. For example, in the Thalidomide scandal… Thalidomide Scandal – one of the darkest areas in pharmaceutical history!  As Goldberg (2013) said, pharmaceutical drugs present some specific legal problems that still persist today.  Thalidomide scandal = drug was marketed as a mild sleeping pill that could also alleviate morning sickness. It was marketed as safe for pregnant women. Caused babies to be born with malfunctioning limbs  Happened in 1960’s

 Exposed weaknesses of common law. On causation area, it was difficult to make it clear that thalidomide was the cause, it was evidentially difficult  The difficulties of proving negligence on the part of the company which had manufactured the drug gave rise to a wide public debate on the product liability issues C. Munro in ...