Law of Tort Summary (Pt 2)

A Private nuisance is an unlawful interference for a substantial length of time with a persons right to use their land in a reasonable way and is actionable as a tort. In order to bring an action for private nuisance, a claimant must show that: He has the right to bring an action and that the person he is suing is capable of being a defendant. There is an interference in the form of either physical damage or loss of amenity in using the land. The interference is sufficiently serious in all circumstances to be unlawful.

The Claimant must have Legal interest in the land to be able to claim - Hunter v Canary Wharf The defendant is most often the creator of the nuisance, but can also be the occupier of the land (if he adopts the activities of the creator) - Sedleigh Denfield v O'Callaghan, and the landlord for the activities of a tenant - Tetley v Chitty. 

Interference:Physical Damage includes damage to land, plants, crops, and goods stored on the land. Physical damage is usually claimable. There are no recoveries for damages in personal injury.Loss of Amenity  is dependant on the unreasonableness of the defendants actions.  Unreasonableness can be decided by the following factors: Locality - The closer the nuisance to the claimants land, the more unlawful it is likely to be. - Halsey v Esso petroleum Duration - The more something happens, the more likely it is to be unlawful. A one off event can also be unlawful in some situations - Spicer v Smee Degree of interference - Time of day can affect seriousness of interference - Halsey v Esso Petroleum Abnormal sensitivity - If a claimant is using his property for what is considered beyond the reasonable use, then it is often too abnormally sensitive to warrant a claim against the defendant. - Bridlington relay v Yorkshire electricity, Robinson v Kilvert Social utility - Dennis v Ministry of Defence Malice on D's part - Hollywood silver fox farms v Emmet, Christine v Davey

Defences: Statutory Authority - An activity is allowed if it is authorised by a piece of legislation. - Allen v Golf oil refining ltd. Prescription - An nuisance will be allowed if the defendant can prove that it has been happening continuously for at least 20 years. - Sturges v Bridgeman Volenti - The nuisance is not unlawful if the claimant consented to it - Kiddle v City business Act of a stranger - An act of a tresspasser is a defence unless the defendant adopts the nuisance voluntarily - Sedley Denfield v O'Callaghan Act of God- A naturally occuring event is not a nuisance - Nichols v Marsland, Goldman v Hargrave Local authority - in some circumstances local authorities permission - Gillingham v Medway Dock co. Public Policy - courts will not grant a nuisance action where it is not in the public interest. - Miller v Jackson, Adams v Ursell Remedies: Injunctions; Whole - Kennaway v Thompson, or Partial - Miller v Jackson Damages - Compensation for loss of amenity - Hunter v Canary wharf, Dennis v MOD Abatement - Self-help remedy such as chopping down overgrown neighbours trees

Public nuisance is 'Something which affects the comfort and convenience of the public as a whole rather than an individual complainant'. In order for there to be a public nuisance, it must be established that a class of people were affected, and that they suffered a common harm:Romer LJ - Attorney general v PYA Quarries: 'A public nuisance is one which affects the reasonable comfort and convenience of life of a class of her majesty's subjects'.A 'Class of People' is not clearly defined and is decided on a case to case basis. It should contain a section of the public rather than individuals.In AG v PYA Quarries, a class of people was 30 houses.In Rv Madden,  a hoax bomb did not clasify for affecting a class of people as it only affected the telephonist and the police that were looking for it.A public nuisance is one which affects a right, a protection or a benefit enjoyed in common by the members of the affected class.In R v Rimmington, the sending of packages to many people was not considered a public nuisance because it didn't cause injury to a public right.Actions to public nuisance:Public nuisance is like private nuisance, in the way that it is about balancing conflicting interests of different people. It is not a public nuisance if a car breaks down and is blocking the way temporarily, but it is a nuisance if a car is parked somewhere unlawful regularly affecting the public.In Lyons v Gulliver, a shopkeeper regularly allowed queues to form down the street, which blocked the other shops who later claimed for their losses. Public nuisance is both a tort, and a criminal offence; it can reach the courts in one of 3 ways: A Criminal case - investigated by the police and prosecuted by the crown prosecution service.  Attorney General has the power to seek an injunction the civil courts on behalf of the public, should a criminal case not be sufficient to deal with the problem. The third route is a civil action bought by an individual member of the public. This is not available to every claimant as there would be many cases against one person, so the claimant must prove they have suffers a loss of amenity or damage 'over and above' the other members of the class affected. Examples include Castle v St. Augustine's links, Halsey v Esso and Tate&Lyle v Greater London council Remedies include Damages and Injunctions, as shown in private nuisance.

Rylands v fletcher originates in an 1868 House of Lords case of the same name. It states that the defendant is liable if on his land,, he accumulates a dangerous thing in the course of a non-natural use of that land, and the thing escapes and causes reasonably foreseeable damage.The Case Itself:The defendant was the owner of a water mill who contracted with builders to construct a reservoir to guarantee a water supply to the mill. The builders sealed the bottom of the reservoir carelessly so that when it was filled, water leaked into the mine shafts below and from there, escaped through tunnels into the claimants mines causing considerable damage. The defendant was held liable for the escape caused by independent contractors, even though it was no fault of his own. The rule in Rylands v Fletcher is Strict liability. It is a sub-species of nuisance - confirmed in Transco plc v Stockport MBC, this means a number of rules in private nuisance also apply. Bringing an action:To establish a claim, the claimant must show the following: Claimants legal position - Claimant should have a legal interest in the land, shown in private nuisance in hunter v canary wharf and transferred to R. v F. in Transco. Accumulation - The defendant must voluntarily bring onto his land an accumulation of the substance which escaped. This covers an artificial accumulation of material (natural or not) but not a natural accumulation such as a lake. - Giles v Walker A dangerous thing - The substance accumulated must be something that is 'likely to cause mischief if it escapes'. This includes hazardous materials such as chemicals and explosives as well as less threatening substances such as water, if they are stored in bulk. - Hale v Jennings    Transco also stated that the accumulated substance must pose an 'exceptional risk', to which water in a pipe did not classify.  A Non-natural use - This does not mean a use which is artificial or man made, but rather a use which is not 'commonplace'. In Rickards v Lothain, the supply of water through pipes to a block of flats was an ordinary use. In Cambridge water v Eastern counties leather, the defendant owned a tannery. The storage of bulk chemicals for an industrial process was considered a non-natural use of the land.  Escape - The substance in question must have moved from the land the defendant controls to the claimants land. - Read v Lyons - Claimant couldn't bring an action as she was still on the defendants premises when the damage was done. Reasonably foreseeable damage - this requirement was introduced by the house of lords in Cambridge v Eastern counties leather - the claimants action in that case failed because it was not foreseeable that chemicals would leak through rocks and contaminate springs. As in private nuisance, only damage to land and goods stored on the land can be claimed for, although older cases like Read v Lyons seem to assume that physical injury is recoverable. Defences: ( A Strict liability tort, yet there are defences): Act of a Sranger - Rickards v Lothain Act of God - Nichols v Marsden Statutory authority - Green v Cleasea waterworks Conributory negligence - sayers v Harlow Consent/ Volenti - Morris v murray Common benifit - If the accumulation is for the benefit of the claimant and the defendant

Vicarious liability is where one person is liable for the tort of another. In order for this to happen, there must be a connection or relationship between these two people and the tort must be in some way connected to this relationship. A-level Vicarious liability focuses purely on the relationship between employer and employee:

Vicarious Liability is a strict liability tort for the following reasons: Protecting the claimant - an employee is more likely to have the resources available to provide damages The exact employee may be unknown. Protecting the employee - ensures that the employer cannot escape liability by forcing his employees to take the risks rather than himself. Improving safety standards - VL encourages an employer to take responsibility of his employees actions and provide them efficient training, qualifications, safety precautions, etc.  Liability of the employee:VL does not extinguish the employees liability, he remains jointly liable with his employer for his actions. In theory, the claimant can choose who he sues, but they are more likely to sue employers as they have more resources. Employers, if sued, can also sue the employee in turn, under the Civil Liability Contributions Act 1978. There is little point in doing this as the employee as already mentioned, will usually be limited in funds.

Establishing VL against the employer:To do this, a claimant must show 3 things: That the employee has committed a tort - if suing for negligence, the normal requirements (duty, breach and damage) would be needed.  That the worker has employee status The employee committed the tort during the course of employment. Who is an Employee? - There are two types of workers; Independent contractors and employees - the employer is only vicariously liable for the employee.Basic definition of an employee is somebody who works under a contract of employment services. An independent contractor works under a contract of services. Usually it is obvious whether or not the person is an employee of an independent contractor, but it can be tricky in some cases. For this, there are a number of different tests: Control Test -  the original test used by the courts, it states that an independent contractor is someone who is told only what to do, where an employee is this, as well as how to do it. -  Walker v Crystal palace football club - the football player employer had control over training schedules and diets, etc. therefore he was an employee. Integration test - States that the more closely involved a person is in the business's core operations, the more likely they are to be an employee.  Neither the control or integration test provide clear answers as to who is the employer or an independent contractor, so they are both used as factors when applying the multiple test:Multiple test - This is the modern approach to classifying a worker. Factors that the courts look at include whether the worker is paid a regular salary or on commission, whether the worker pays national insurance contributions and income tax as an employee or a self-employed person, whether the contract describes the worker as an employee or not, and whether the employee has the powers to delegate work to another without permission. In addition, an independent contractor is more likely to work from his own premises, have his own equipment, hire his own helpers, and be personally affected by his own investment and management decisions. - Ready mix concrete v Minister of pensionsDue to the number of factors listed above, 3 main parts have been established to the multiple test: Control - not the degree of control required in the old control test, but the employer must be, to some degree, in charge  of the worker and the work being carried out. Personal Performance - Whether the worker is permitted to delegate jobs in his contract - Echo and express publication v Tanton Mutuality of obligation - between the employer and the worker. This means that the employer has legal obligations to pay the worker and the employee has corresponding obligation to work within the terms of the contract.Neither can choose on a particular day whether to be an employer or a worker - Carmichael v National power. 

Course of Employment: Authorised Acts - An employee is in the course of employment if he is carrying out an act authorised by his employer and if that act amounts to a tort then the employer is vicariously liable for it. - Century insurance v Northern Ireland road transport board. Authorisation can be implied or express, and the action can be one which benefits to employee, no just the employer.  Authorised Acts using expressly forbidden methods - An employer is vicariously liable for an authorised act carried out by his employee, even when the authorised act had been carried out in a manner which the employer has expressly forbidden. - Limpus v London General omnibus Unauthorised Acts - Employers are not VL if employee is 'off on a frolic' or doing something not in the job description - B Road traffic accidents - An employer is VL for the careless driving of his employees, only if it is in the course of his employment. Unauthorised lifts is considered in Conaway v Wimpey (lift was given to employee where it was completely forbidden) and Rose v Plenty (lift was given to someone whilst otherwise going about duties and passenger contributed to duties). Deviation from the set route is considered in Storey v Ashton (employer not liable where an emplyee embarks on a frolic of his own) and A&W Hemphill v Williams (employer is liable where the detour is connected to the employers business). Journeys too and from work are not usually considered in the course of employment. Criminal offences - Employers are liable for their employees criminal acts if they authorised it either expressly or implied - Poland v Parr. An employer is VL for the criminal acts of an employee if those acts are so closely connected to what the employee should have been doing that it is fair just and reasonable to hold the employer liable - Lister v Hesley Hall. An employer will be VL, even for actions strictly outside the place of work, if the sequence of events had begun at work and the employee had been encourage to act in a certain way - Mattis v Pollock. An employer wont be VL for activities that had no connection to an employees job - AG of British virgin isles v Hartwell.

Rylands v Fletcher

Vicarious Liability

Private nuisance

Public Nusance