Tort-private nuisance IV

Owners of fields and pitches have a duty to ensure that no disturbance is caused to neighbors or owners of adjoining lands and property. In Miller v Jackson (1977) the plaintiff purchased a home and the land her house was built on was next to a cricket pitch.

The balls that were hit by the batsmen often cleared the fence and landed on the plaintiff’s front lawn. Such was the nature of the game that batsmen were required to hit the ball as hard and as far as they could and the balls caused damage to the items and chattels that she had in her front yard.

The plaintiff complained and the cricket club erected a higher fence, and the number of balls that cleared the fence were somewhat reduced but there were still occasions when batsmen would hit the ball over the fence and the balls would land on the plaintiff’s lawn. Eventually, the plaintiff sought redress in court.

The court held that the plaintiff had the right to enjoy her property and the acts of the players of hitting the ball over the fence tampered or interfered with that right and as a result the actions of the batsmen constituted nuisance. The plaintiff was successful.

Owners of land or occupiers of property also have to take reasonable care to ensure that waste or debris from their land did not make its way to adjoining properties. In Goldman v Hargrave (1967) a tree on the defendant’s land was struck by lightning during a storm and subsequently caught fire. The next morning the defendant had the tree felled and sawn in half. Unknown to him however the tree was still smoldering and due to the extensive heat on the particular day, the tree once again caught fire and the fire spread to the plaintiff’s property, causing serious damage to the property. The plaintiff sued.

The court held that owners or occupiers of property had a duty to ensure that any waste or debris on their property did not make its way to adjoining properties. The plaintiff was successful.

The decision of the court in Goldman v Hargrave (1967) was reaffirmed in Leakey & Ors v National Trust (1980). Soil and debris from the defendants’ property caused damage to adjoining properties and one of the property owners, the plaintiff, contacted the defendants to have the problem remedied or rectified and offered to pay for part of the costs. The defendants rejected the plaintiff’s offer, and the problem worsened and eventually caused extensive damage to the plaintiff’s property. The plaintiff sued.

During the trial, the defendants adduced evidence to point out that the burrow mumps that were the source of the debris occurred naturally and hence they should not be liable. The court rejected the defendants’ argument and in line with the decision in Goldman v Hargrave (1967) found that the defendants were responsible for any damage caused to adjoining properties that occurred as a result of owners or occupiers failing to address any irregularities, natural or otherwise, on their land.

Though in order to be successful in an action alleging nuisance, the act must be repetitive and must be done over a period of time, yearly events for example the lighting of fireworks or the lighting of a bonfire on Guy Fawkes Day maybe be construed to be acts of nuisance if they become more frequent during the year.

In Kennaway v Thompson (1981) the plaintiff moved into her father’s house which was close to the starting point of the annual races of a motor boat racing club. The races grew more frequent and were eventually no longer an annual event but rather an event that was conducted regularly throughout the year. The plaintiff sought redress in court.

The court found for the plaintiff and decided that the increasingly frequent motor races were indeed a nuisance and that the races tampered with the plaintiff’s right to enjoy her property.

Owners of property have a duty to ensure that their property is not taken over by squatters and in the event that it is, the owners would be responsible for any damage or discomfort caused to owners of adjoining properties by the squatters.

In Page Motors v Epsom Borough Council (1982) the plaintiff ran a second-hand car business in his yard which adjoined vacant land that belonged to the defendant. The land was left vacant for a period of time and was subsequently occupied by squatters. The resulting noise and other actions of the squatters caused the plaintiff a great deal of discomfort and the plaintiff brought an action against the defendant in court.

The court held that the council was liable and had a responsibility to ensure that any occupant on its land did not become a nuisance to owners of adjoining properties.

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Tort-Private nuisance III

If an act undertaken to prevent discomfort to the owners of adjoining lands had been successful in the past but because of a sudden change in conditions it was found that the measures that were implemented were not adequate and caused discomfort or displeasure to the owner of an adjoining property, the failure to prevent the discomfort may be deemed or regarded as nuisance.

In Sedleigh-Denfield v O’Callaghan (1940) the council adopted measures to drain excessive water and to prevent flooding to adjoining lands. The work was carried on periodically over three years and was successful. However, there was a sudden downpour and the excess water that resulted from the heavy rain caused the adjoining property to be flooded. The plaintiff, the aggrieved neighbor sued. It was held that despite the measures that were taken in the past the defendants were still liable because their failure had caused discomfort to the plaintiff.

Business owners, regardless of the nature of the business they’re in, have a duty to ensure that that the fumes and particles that are released from their business premises do not cause discomfort to adjoining land owners.

In McKinnon Industries v Walker (1951) the defendant was an iron and steel manufacturer whose manufacturing facility was located on the adjoining property or the property next to the plaintiff’s.

The plaintiff had a nursery which included rare orchids and as a result of being exposed to the fumes that were released from the defendants factory the orchids wilted and would not flower.

In addition to that the dust particles that were released from the factory also clung tenaciously to the hedges and shrubs and deposited themselves on the plants and caused many of the plants to wither and die.

The plaintiff brought an action in court and the court in line with the decision in Bliss and Hall (1838) and Adams v Ursell (1913) found for the plaintiff and decided that the fumes and other particles that were released from the defendants’ factory were a nuisance.

The act that constitutes nuisance does not always need to be noisy. The very fact that it is visible is sufficient for the plaintiff to seek redress in court and the court, if it deems it reasonable that such acts should be done with discretion and not in plain view of the plaintiff, will grant an injunction.

In Thompson-Schwab v Costaki (1956) the defendant converted his premises to a brothel the plaintiff was able to see all the clients that entered and left the brothel. The plaintiff felt uneasy and brought an action in court. The court found for the plaintiff and decided that the defendants’ actions constituted nuisance.

In addition to noise, fumes and odors, toxic substances that emanate from the land and permeate the surroundings are also regarded as nuisance and the land owner has to take reasonable care to ensure that such substances do not cause any discomfort to his or her neighbors.

In Halsey v Esso Petroleum (1961) acid flakes from the defendants’ property damaged a car belonging to the plaintiff and the disgruntled plaintiff brought an action in court. The court found for the plaintiff and held that the defendant owed a duty of care to ensure that any substances that escaped from his or her property did not cause any injury to others or cause damage to the adjoining properties.

Property owners must also take care to ensure that materials that belong on their property do not make their way to an adjoining property and cause damage or discomfort to owners of the adjoining property.

In British Celanese v Hunt Ltd (1969) a metal foil from the defendants’ premises was blown by the wind to an electric substation resulting in a power outage that caused a blackout in a nearby industrial estate.

That was the second time it had happened and the plaintiffs sought a remedy in court. The court held that that such occurrence were a nuisance to others and found for the plaintiff.

In Bone v Seale (1975) the defendants operated a pig farm. The business was a success and the defendants expanded their operations towards the plaintiff’s property. Pigs however were not the cleanest of animals and the resulting smell caused discomfort to the plaintiff. The plaintiff turned to the courts for assistance. The court in line with the decisions in Bliss and Hall (1838) and Adams v Ursell (1913) held that the defendant had a duty to ensure that no foul odors escaped from their property and caused distress to the plaintiff.

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Tort – Private Nuisance II

Actions that once did not constitute nuisance can later constitute nuisance. The act of operating noisy machinery for example may have continued for years without there being any complaints because the adjoining houses were vacant but once a lawful occupier moves into one of the houses, he or she can seek redress in court if the actions of his or her neighbor prevent him or her from enjoying its benefits.

In Sturges v Bridgman (1879) the defendant owned and operated a bakery and the machinery that he used to grind the flour had been noisy for 20 years without a single complaint.

However, a new neighbor moved in, a medical practitioner who ran his practice from his home and he brought an action against his neighbors claiming that the noise that resulted from the bakery was disturbing his patients.

The defendants contended that they had been using the machinery for years without there being any complaints and did not see any reason to stop using it. The plaintiff was successful. Situations and circumstances change and what did not constitute nuisance 20 years ago may be treated as nuisance today.

Likewise, where the act is done also plays a part in determining whether an act is deemed to be a nuisance or otherwise. Let’s say for example, the defendant is particularly fond of chopping wood and he’d done so in his backyard for 20 years and no one has once complained about it. To the contrary people around him have complimented him for maintaining a healthy lifestyle. However, if the same defendant was to start chopping wood in the middle of High Street Kensington, he would most likely be found to be a nuisance.

If the act is done by the occupier on his or her property and the act does not interrupt the plaintiff’s right to enjoy his or her property than the act would not constitute nuisance. In Bradford Corp v Pickles (1895) the underground streams that ran through the defendant’s property were channeled by the plaintiff for his waterworks. The defendant later tried to stop the water from going to the plaintiff’s property by draining the streams. The plaintiff sued. The court held that the defendant was not liable. What the defendant does on his own property, as long as it does not interfere with the plaintiff’s right to enjoy his property, cannot be deemed as nuisance.

It’s worth comparing the decision in Bradford Corp v Pickles (1895) with the decision in the later case of Adams v Ursell (1913). Whether an act constitutes nuisance or otherwise normally depends on the facts and at times it is impossible to generalize.

It is however safe to say that as long as the act does not interfere with the right of another to enjoy his or her property than the act will not be interpreted as an act of nuisance.

In Bliss and Hall (1838) the occupiers of an adjoining property found the fumes from a candle making factory located next to their property to be offensive and accordingly brought an action in court. The court found for the plaintiff on the grounds that it was reasonable to say that the fumes from a candle making factory may cause some discomfort to the neighbors.

The smell does not necessarily need to be rancid or putrid. If a reasonable person would consider it a disturbance to his or her right to enjoy his or her property that the chances are that the act would constitute nuisance.

If an act is done with malice to deprive the plaintiff of earnings or profits than the act would constitute nuisance. In Hollywood Silver Fox Farm v Emmett (1936) the plaintiff bred silver foxes for its fur and the defendant who occupied an adjoining property fired his gun close to a den in an attempt to stop the foxes in captivity from reproducing.

The plaintiff sued and the defendant was held to be liable. The court in line with the decision in Christie v Davey (1893) found that if an act is done with malice, then the act, even if it is done on the defendant’s property may constitute nuisance.

In order for a plaintiff to claim for nuisance he or she must have some proprietary interest in the property. In Malone v Laskey (1907) the plaintiff was injured when the noise made by machinery in an adjoining property caused the cistern in a toilet to fall on her. The court held that because her husband did not have a proprietary interest in the property, she was unable to claim.

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Tort – Private nuisance I

There are two types of nuisance in English Law: –

  • Private nuisance and
  • Public nuisance

Private Nuisance

Private nuisance is defined as an interference wholly or in part with the right of one person to enjoy the rights over his or her land or property by another person. The element of foreseeability and damage, the prerequisites to bringing an action or a claim in tort, must be satisfied.

In other words, it must be foreseeable that the interference will cause some sort of discomfort or displeasure to the user and that discomfort has resulted in some type of damage.

In instances of property damage, the damage must be the type of damage that ordinarily results from the act and is not peculiar to the item or the chattel.

In Robinson v Kilvert (1889) the defendant and the plaintiff were both in business. The defendant who used the basement to produce paper boxes rented out the first floor of his premises to the plaintiff. The plaintiff used the premises he had rented from the defendant to store paper.

The defendant’s business required an unusually dry place and the basement was accordingly kept continuously dry. This can easily be done by keeping the heater on – gas heaters especially result in a warm atmosphere. The heat damaged the paper that the plaintiff had stored and the plaintiff sued.

During the trial, it was discovered that the paper that the plaintiff had stored was of an unusual type and the heat that was released from the basement would not have caused damage to any other type of paper with the exception of the kind or type that was stored by the plaintiff.

The court held that the defendant was not liable because the type of paper was not that which is usually stored or used. The defendant or any other person for that matter can be expected to foresee damage to normal paper but the chances or possibilities are slim that they can foresee damage to the rare or special type of paper that was stored by the defendant.

No claim would arise if it was reasonable to act in the manner that the defendant did. In Harrison v Southwark and Vauxhall Water (1891) the defendants carried out construction works during the day and the work was only temporary. The plaintiff brought an action against the defendant for nuisance but it was held that the work that was carried out by the defendant, despite the discomfort that was caused to the plaintiff, was something that happened in the course of day to day living.

Local councils and other authorities have a duty, normally imposed by law, and without doubt they may while ensuring that they comply with the duties that are imposed on them cause some sort of discomfort to the plaintiff or others like him but as long as that duty is complied with in a reasonable manner or in a manner that is deemed fitting or appropriate than the work that is carried out by the council or the authority will not be construed as nuisance.

If the act was done with malice or was done to aggravate the defendant than it would be interpreted as nuisance. In Christie v Davey (1893) the plaintiff was giving music lessons, in his house, which is normally something that is done during the normal hours of the day and the defendant his neighbor tried to put a stop to it by banging on the wall and beating on tin pans. The plaintiff sought a remedy in court and the court found for the plaintiff. The defendant’s actions, whatever the reason, were merely done to aggravate the plaintiff.

However, if the duty is carried out in an unreasonable manner or in an inappropriate manner the law will intervene on behalf of the plaintiff. In De Keyser’s Royal Hotel v Spicer Bros (1914) the defendants were preparing the foundations for a new building and the work included driving piles into the ground. The work was carried out in the night. It started just after dinner and continued until dawn. The plaintiff brought an action against the defendants in court on the grounds that the plaintiff was unable to sleep because of the loud booming noise that resulted from the piling works.

The claimant was successful. The court granted an injunction to stop the piling works because they were not carried out in the proper manner.

If the act causes prolonged and continues interference with the right to enjoy one’s property then the courts will classify it or categorize it as nuisance. In Adams v Ursell (1913) the defendant operated a fish and chips shop on his premises. The odors that emanated from the cooking carried to his neighbor’s home, the plaintiff, who brought an action in court seeking redress. The court found for the plaintiff and held that such regular and frequent odors constituted nuisance.

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Tort – Contributory negligence V

In Green v Gaymer (1999) the plaintiff got on the back of a motorbike with the defendant who was drunk at the time on the throttle. The motorbike subsequently crashed into a lamppost and in the accident that followed, the defendant was killed while the plaintiff was injured. The plaintiff sued.

It is worth comparing the facts of Green v Gaymer (1999) with that of Pitt v Hunt (1990). There, the defendant aged 16 gave the plaintiff aged 18 a ride on his motorbike. The defendant neither had insurance nor had he paid road tax and he was on a bike with a much bigger engine than someone his age was allowed to be on.

In addition to that both the plaintiff and the defendant were drunk and witnesses gave evidence that they were riding recklessly on the road at the time. There was an accident and the defendant was killed while the plaintiff suffered serious injuries.

Whereas in Pitt v Hunt (1990) the maxim of ex turpi causa prevented a duty of care from arising the court in Green v Gaymer (1999) decided that the defendant owed the plaintiff a duty of care and accordingly awarded damages to the plaintiff because the duty had been breached and had resulted in an injury. The damages however were reduced by 20% because the court found that the plaintiff was contributorily negligent.

Could the defendant have raised the defense of volenti i.e. that the plaintiff had consented to accepting the risk? In Dann v Hamilton (1939) the courts determined that in order for volenti to apply in instances where passengers had gotten into a vehicle with the knowledge that the driver was drunk, the condition of the driver must be so striking or glaring that it is akin to waiting for a bomb to explode or walking on the edge of a cliff.

In Fairchild v Glenhaven Funeral Services (2001) the plaintiffs were independent contracts who were exposed to asbestos dust during the course of their employment and as a result contracted mesothelioma, a cancer of the mesothelial tissue, which is commonly caused by exposure to asbestos. The plaintiffs sued.

The court in line with the decisions in Margereson & Hancock v JW Roberts Ltd (1996) and Holtby v Brigham & Cowan (2000) held that the defendants were liable but the damages were reduced. The court took into account the numerous times the plaintiffs had willingly exposed themselves to asbestos dust, in accordance with the Law Reform (Contributory Negligence) Act 1945.

In Booth v White (2003) the plaintiff and the defendant were drinking together in a pub. The plaintiff then left the pub to watch a football match and returned later to find the defendant still in the pub.

At the time, there was nothing to indicate that the defendant was drunk and the plaintiff’s wife herself who had met the plaintiff and the defendant in the pub while they were drinking testified that the defendant appeared perfectly normal and looked to be in complete control of things.

The plaintiff and the defendant later got into a car with the defendant behind the wheel. The car crashed and the plaintiff was injured. The plaintiff sued and the defendant raised the defense of contributory negligence.

The court in line with Dann v Hamilton (1939) decided that in order for the court to find that the plaintiff was contributorily negligent, the defendant must not only be drunk but must appear to be so i.e. it must be fairly obvious to the plaintiff or anyone else around him that the defendant was drunk.

In Badger v Ministry of Defense (2005) the plaintiff was the widow of a former employee of the Ministry of Defense who died at the age of 63, as a result of lung cancer or cancer of the lungs. At the trial, it was found that, the cancer had been caused by continuous exposure to asbestos dust.

However, despite knowing that he had lung cancer the plaintiff’s husband continued to smoke. The plaintiff brought an action against the Ministry of Defense for causing the death of her husband by exposing him to asbestos dust.

The plaintiff was successful. It was found that the Ministry of Defense owed the plaintiff’s husband a duty of care. However, the court also found that the fact that the plaintiff’s husband continued to smoke after it was discovered that he had lung cancer aggravated the illness and therefore the damages that were awarded were reduced by 20%.

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Tort-Contributory negligence IV

In Fitzgerald v Lane (1987) the plaintiff was walking down a pelican crossing when the light for pedestrians turned red. He was hit by the first defendant’s car and thrown on to the path of the second defendant’s car. The plaintiff suffered severe injuries especially to the neck resulting in partial tetraplegia. Because it was impossible to determine which of the defendants caused the injury an action was brought against both defendants.

It was held that because it was impossible to determine which of the defendants had caused the injury, the defendants were jointly liable. The damages were however reduced by 1/3 in line with s1 (1) of the Law Reform (Contributory Negligence) Act 1945.

In Capps v Miller (1989) the plaintiff, a motorcyclist, was in the middle of the road, on his bike, waiting to make a right turn. He was waiting for the right time to make the turn when the defendant, who was drunk at the time, crashed into him with his car from the rear. The plaintiff was injured. Though the plaintiff was wearing a helmet at the time, the strap was not fastened and that aggravated his injuries because as soon as he was hit by the car, he was thrown onto the road and the helmet flew off. The plaintiff sued.

The defendant raised the defense of contributory negligence asserting that had the helmet been fastened in the proper or appropriate manner the resulting injuries would not have been so severe. The court in the first instance found for the plaintiff and ruled out contributory negligence. The defendant appealed.

The Court of Appeal allowed the appeal and reduced the damages that were awarded to the plaintiff by 10% on the basis that had the plaintiff been wearing his helmet in the prescribed manner, the extent of the injuries might not have been so severe.

There may have been a public policy reason for the Court of Appeal’s decision, in that, it is just not sufficient to have a helmet on because the law requires people to do so. The helmet must be worn in the proper manner or in the manner that is prescribed.

In Barrett v Ministry of Defense (1995) the plaintiff’s husband was working in the navy and was stationed in Norway. On the night of the incident he’d been drinking heavily and caught the attention of a senior officer who then instructed a petty officer to make sure he was well and to get him back to his bunk. The petty officer did as he was instructed and checked on him on a few occasions but despite that, he died during the night. His wife, the plaintiff brought an action in court alleging that her husband’s death could have been prevented had it not been for the defendants’ negligence.

The court held that under normal circumstances the navy did not owe her husband a duty of care but the court decided that a duty of care was owed in this instance because a senior officer had taken charge of matters. The duty arose as soon as the senior officer had assumed responsibility.

The damages awarded to the plaintiff were however reduced by 25% because the court found that the plaintiff’s husband had contributed partly to his own death by drinking excessively or by drinking more than what was allowed or recommended.

In Revill v Newbery (1996) the defendant was an elderly man, aged 76 at the time, who’d taken to sleeping in his shed where he kept certain valuable items. He was in the habit of sleeping with a loaded shotgun next to him.

The plaintiff, tried to break into the shed at 2 am in the morning, with his friend and the defendant who was woken up by the sounds of the break in, fired his shotgun, through a small hole in the shed and the plaintiff was hit. The plaintiff and his friend admitted their wrongdoing and were convicted but the plaintiff later brought a civil action against the defendant.

The court took into account s.1 of the Occupiers Liability Act 1984 and decided that a burglar cannot be treated as an outlaw and the plaintiff was successful. However, the damages that were awarded to him were reduced by 2/3 as per the Law Reform (Contributory Negligence) Act 1945. The judge did not consider it necessary to take into account the principle of ex turpi causa.

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Tort-Contributory negligence III

In Froom v Butcher (1975) the plaintiff was involved in a car accident which was caused by the defendant’s negligence. While the defendant was held liable, the claimant was not wearing her seat belt at that time of the accident. The law that made the wearing of seatbelts mandatory only came into force on the 31st of January 1983 – prior to that it was recommended that passengers in a car wear seatbelts. Fitting of seatbelt anchorage points in all new cars was made compulsory in 1967.

Therefore it is possible to surmise that the government was quite serious about making the public aware of the benefits of wearing seatbelts and it was only a matter of time before the law came into effect.

It was held that the plaintiff would not have been injured but for the defendants negligence but the plaintiff also had a duty to take the necessary precautions to mitigate or reduce any injury he or she may incur by taking recommended precautionary steps and therefore the damages that the plaintiff received were reduced in proportion to the amount that he or she was deemed to have contributed to his or her own injury.

In Owens v Brimmell (1977) both the plaintiff and the defendant were out drinking and after they’d had about 8 pints each got into a car to drive home. During the journey, the driver lost control of the car and the car crashed into a lamppost resulting in injuries to both the driver and the passenger. The plaintiff, who was the passenger sued.

The court acknowledged that the accident was caused by the recklessness of the driver but the plaintiff was not entirely without fault. He had made the conscious decision of getting into a car with someone who was drunk behind the steering wheel and therefore the damages that were awarded to him were reduced by 20% and he was found to be contributorily negligent.

It is worth comparing the decision in Owens v Brimmell (1977) with the decision in Traynor v Donovan (1978). In Traynor v Donovan (1978) the plaintiff got into a car with the defendant, who was drunk, behind the wheel. Though he was above the alcohol limit for drivers, the defendant’s condition was not obvious or apparent. The car subsequently crashed and the plaintiff sued. The defendant contended that the damages awarded to the plaintiff should be reduced because the plaintiff had knowingly got into a car with a driver who’d been drinking.

The defendant was unsuccessful. The court held that the defendant was liable and the plaintiff would only be contributorily negligent if he or she knew that the defendant had been drinking. In this instance the court found that there was nothing to indicate that the plaintiff was aware of the fact that the defendant had been drinking and therefore the plaintiff was not contributorily negligent.

The decision in Traynor v Donovan (1978) was reaffirmed in Malone v Rowan (1984). The plaintiff’s husband got into a car with a driver who was drunk. The car subsequently crashed and the plaintiff’s husband was killed in the accident. The plaintiff sued.

The court in line with the decision in Traynor v Donovan (1978) found that in a situation where the plaintiff gets into a car with a driver who is drunk but there is nothing to indicate that the driver is drunk or the plaintiff has no reason to believe that the driver is drunk, then the plaintiff cannot be found contributorily negligent if an accident were to occur.

In order for any defendant to successfully raise contributory negligence the plaintiff in most instances, though there may be exceptions, must be aware of all the facts. Let us go back briefly to the situation where the plaintiff and his friend entered a mine with the unstable roof and the employers were about to bring the roof down. The plaintiff in that instance was found to be contributorily negligent because he was aware of all the facts.

If the plaintiff wasn’t aware that the roof of the cavern was unstable or if he wasn’t told to avoid the mine, shaft or cavern because the employers were about to bring the roof down and if he had entered it in the normal course of employment than he would not have been contributorily negligent.

Likewise in the case of the motorcyclist who was involved in an accident and found to be contributorily negligent because he wasn’t wearing a helmet, most people would know that riding a bike without a helmet is dangerous and any injury that was incurred as a result of an accident, while riding a bike, will be aggravated if the rider does not wear a helmet.

Similarly in the case of the driving instructor who got into the car with Mrs. Weston, he was aware that Mrs. Weston was not a diligent driver.

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Tort-Contributory negligence II

In Sayers v Harlow UDC (1958) the plaintiff used one of the public toilets provided by the defendants. When she tried to leave the cubicle, she realized that the door was without a knob or a handle or the knob or the handle had become undone. She tried fidgeting with the door and when that was unsuccessful she tried climbing out the window by standing on a toilet roll holder which gave way and the plaintiff was injured as a result. The plaintiff sued.

The court held that it was reasonable to expect that doors in public toilets would open both ways and the means to open the doors would always be readily available. It was also foreseeable that if someone was trapped in a public toilet they’d try, in some way or other, to get out and the longer a person is stuck or trapped in the toilet the more frantic or desperate he or she would become. The plaintiff was successful and the council was held to be liable.

The plaintiff’s damages were however reduced because the court found that, while trying to escape was by no means unreasonable, the court compared the situation to that of an unlawful detention, doing so while resting the plaintiff’s weight on a slender toilet roll holder was an act of foolishness. The damages awarded to the plaintiff were therefore reduced accordingly.

Contributory negligence while it applies to adults may not apply to children if the same situation were to occur. The law takes into account the plaintiff’s age and while a duty may be imposed on an adult to take reasonable care, that duty may be relaxed if it was a child that was injured.

In Gough (an infant) v Thorns (1966) three siblings, two boys and a girl, aged 17, 10 and 13 respectively, were waiting on the pavement to cross the road. A lorry approached and the driver slowed down signaling for the children to cross the road. Because of the size of the lorry, the siblings were unable to see a car behind the lorry and as they crossed the car crashed into the children and the girl aged 13 was seriously injured. The plaintiffs sued and the defendant argued that the children were contributorily negligent.

The court held that while the defense of contributory negligence may apply to adults in this instance, the same cannot be said for children because it is unreasonable to expect them to exercise the same skill and care as an adult. Furthermore, the defendant was under a duty to exercise due care and caution while overtaking. The plaintiffs were successful and were found not to be contributorily negligent.

In O’Connell v Jackson (1971) the plaintiff was a motorcyclist who crashed while on his motorbike into a car that was driving negligently. The plaintiff sued. The defendant contended that had the plaintiff been wearing a helmet the injuries might not have been so substantial.

The court held that the defendant was guilty but the damages that were awarded to the plaintiff were reduced by 15% because the plaintiff’s failure to wear a helmet had aggravated his injuries.

In Nettleship v Weston (1971) the defendant was a learner driver who employed the plaintiff to help her fine-tune her driving skills. While they were on the road the defendant turned a bend and the plaintiff told the defendant to straighten the wheel. The defendant failed to do so and in order to avoid an accident the plaintiff pulled on the handbrake but despite that the car ran over a pavement and hit a lamppost and the plaintiff was injured in the accident that followed.

The plaintiff sued. The defendant pleaded volenti and argued that by entering into the car the plaintiff had voluntarily accepted the risk. The court rejected this argument and the plaintiff was successful. The court held that despite the fact that the defendant was a learner driver the duty imposed on her was the same duty that was imposed on any other driver.

In this particular instance in order for the defendant to successfully plead volenti the plaintiff must have either impliedly or expressly waived his right to seek a legal remedy.

The plaintiff’s damages were however reduced by 50% because the court found that the plaintiff had been contributorily negligent and his failure to exercise due care and caution had exacerbated his injuries.

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Tort – Contributory negligence I

S.1(1) of the (Law Reform) Contributory Negligence Act gives us the scope of contributory negligence as defined by law – Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage:

Provided that—

(a) this subsection shall not operate to defeat any defense arising under a contract;

(b) where any contract or enactment providing for the limitation of liability is applicable to the claim, the amount of damages recoverable by the claimant by virtue of this subsection shall not exceed the maximum limit so applicable.

Contributory negligence is a defense i.e. when a defendant is adjudged to be negligent for doing an act he or she should not do or for failing to do something which under normal circumstances others would do or something that the law compels the defendant to do, the defendant can then adduce evidence to show that it was not solely the defendant’s act or omission which led to the damage and that the plaintiff was also partly responsible because the plaintiff failed to exercise due care or caution or failed to act in a manner that was reasonable.

If the defendant is successful the damages that are awarded to the plaintiff will be reduced accordingly or to the extent the plaintiff had contributed to the damage.

In Davies v Swan Motor (1949) the plaintiff was standing by the side of a garbage truck. He was standing alone at the time and the truck was moving slowly because the plaintiff had to jump off at regular intervals and collect the waste and dump it into the back of the truck. A bus overtook the lorry and the plaintiff was killed in the accident that followed. His estate sued and they were successful.

It was held that the bus driver ought to have exercised due care and caution while driving the bus. It was foreseeable that garbage trucks would have workers standing on the outside. The trucks are built in a manner in which they can accommodate, in most instances two workers standing on either side of the truck, and any negligence on the part of other drivers would most likely lead to a mishap.

The damages that were awarded to the plaintiff however were reduced by 1/5 because despite the fact that these garbage trucks were built to accommodate workers standing on the outside, the workers also had a duty to ensure that they did so skillfully or in accordance with the level of skill that is expected or required of them.

In Jones v Livox Quarries (1952) the plaintiff was working in a quarry and during his lunch break he jumped on to the back of a tractor unknown to the driver, despite the fact that it was against the company rules to do so. While the plaintiff was on the back of the tractor, it was hit from the rear by a truck that was driven recklessly and the collision that followed resulted in serious injuries to the plaintiff. The plaintiff sued.

The court held that that the defendant was liable because it was his recklessness that had caused the accident but the damages that were awarded to the plaintiff were reduced by 1/5 because the plaintiff had also contributed to the injuries that he had sustained by jumping on to the back of the tractor without the knowledge of the driver when the rules of the company specifically prohibited him from doing so.

In Stapley v Gypsum Mines (1953) the plaintiff’s husband was working in a mine and he was informed that the roof of the cavern was not steady and company was in the process of bringing the roof down. In the meantime, employees were prohibited from entering the cavern. The first attempt failed and before the employers could try again the plaintiff and another worker entered the cavern. The roof collapsed and the plaintiff was killed in the accident. The plaintiff was working alone at the time. His widow sued.

The court held that that the defendants were liable because they should have taken more care to prevent workers from entering the mine for example sealing the entrance to the cavern off temporarily. However, the court also found that the plaintiff had contributed to his own injuries by doing something that was specifically prohibited by his employers and therefore the damages that were awarded to his widow were reduced by 50%.

Copyright © 2018 by Dyarne Ward

Tort – Occupiers liability cases IX

In Perry v Harris (2008) we are once again confronted with a situation where an occupier has organized a gathering on his or her premises and has either equipment that the visitors can use or has shows for the benefit of the visitors along the lines of Gwilliam v West Hertfordshire Hospital NHS Trust (2002) and Bottomley v Todmorden (2003).

In this instance, the defendants organized a party and the children in attendance were allowed to use a bouncy castle. The plaintiff aged 11 years old was injured, while using the castle, when one of the bigger boys decided to get into the act. The plaintiff sued. The court decided that the injury that the boy sustained was not a result of the defendants’ negligence but rather that of the parents.

While it is impossible to impose a duty on parents to supervise their children all the time, imposing such a duty would be contrary to public policy, it was, on the other hand, reasonable to expect parents to supervise their children in instances or in situations where they are likely to incur or sustain some form of injury especially during play.

It was foreseeable that other children would also use the castle and while they were playing, it was likely that some injury might befall the children if the parents did not take proper care and caution. The plaintiff was unsuccessful.

In Mann v Northern Electric Distribution (2010) the plaintiff a 15 year old boy suffered severe burns and sustained serious injuries when he climbed a fence around a electricity substation to retrieve a football.

The court once again had to decide on the duty that is owed to a trespasser as per s(1)(3)(b) of the Occupiers Liability Act 1984 and as we have seen thus far there are two elements that a trespasser has to satisfy before he or she can be successful in a claim.

The first question that is to be asked is, is it reasonable to impose a duty on the occupier under the circumstance? and this then leads us to the next question, in that, could the defendant have anticipated the actions of the trespasser?

Accordingly, the court held that it was not reasonable to impose a duty on the defendants under the circumstances and the defendants could not have anticipated the risk or the injury that followed when the plaintiff undertook the risk.

In Harvey v Plymouth County Council (2010) the plaintiff, aged 21, who was drunk at the time crashed into a fence and fell down a slope and as a result sustained serious injuries.

The property belonged to the council and despite fencing the area close to the edge of the slope off, it had neglected to maintain the fence and as a result the fencing had deteriorated. The grounds were frequently used for recreational purposes and there was an implied license that allowed visitors to use it for recreational activities.

S2(2) of the Occupiers Liability Act 1957 defines the scope of this license. “The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there”. The plaintiff sued.

The court held that the defendants were not liable. The duty to visitors existed only in so far as the land or the property was used in the manner which it was intended i.e. in this instance for recreational purposes and since the land or the property in question was not used for the purposes that it was intended therefore no duty existed.

In McCarrick v Park Resorts (2012) the plaintiff dived into a swimming pool but because of insufficient depth sustained serious injuries and subsequently became a tetraplegic. The plaintiff sued. The plaintiff’s argument was that there were no visible signs posted that warned him of the dangers of diving in the pool or that indicated that the pool or the area of the pool that he was diving in was shallow.

The court found in favor of the plaintiff and decided that signs that were posted to warn visitors of any dangers should be done so in a manner that was plainly and clearly visible. To do otherwise would defeat the purpose. The court however reduced the damages that the plaintiff received by one third because it found that the claimant was contributorily negligent.

Copyright © 2018 by Dyarne Ward