HAFSA MEHMOOD 664138

Unit 7 Aspects of tort

Aim C: Investigate the law on occupiers’ liability and vicarious liability:

Task 1A:

Occupiers’ Liability:
Occupiers' Liability is a branch of negligence. Negligence is a common tort law created by judges. The main
remedy for a successful claim of Occupiers' Liability is compensation for any injuries sustained or damage
suffered. The Occupiers' Liability Act 1957 provides that an occupier of premises owes a duty of care to lawful
visitors and if that duty is broken and the visitor is injured, they are entitled to receive compensation from the
occupier.
Adult Visitors: Lawful adult visitors include people who have been invited to enter and who have express
permission to be there, people who may have expressed or implied permission to be on land for a certain
period of time, those with contractual permission, and those with a statutory right of entry. An adult visitor is
owed the common duty of care. According to s2(2) of the Occupiers' Liability Act 1957 this means to take care
as in all the circumstances is reasonable to see that the visitor will be reasonably safe in using the premises for
the purpose for which he is invited... to be there. Though the occupier does not have to make the premises
completely safe for the visitor- only to do what is reasonable as shown in the case of Laverton v Kiapasha
(Takeaway Supreme) (2002) and also shown in the case of Dean and Chapter of Rochester Cathedral v Debell
(2016). The judgments in both cases show that the common duty of care imposes a duty on the occupier to
keep the visitor reasonably safe, not necessarily to maintain the premises completely safe. A visitor may be a
lawful visitor for the purposes of the Occupiers' Liability Act 1957 but if they surpass their permission, for
example, by entering a room they have been told not to enter, they may become a trespasser and lose the
protection of the Act.
There are other visitors such as children. The occupier will owe children coming onto the premises the
common duty of care, but there is an additional special duty owed to child visitors. Under s2(3) of the
Occupiers' Liability Act 1957, the occupier 'must be prepared for children to be less careful than adults' and as
a result 'the premises must be reasonably safe for a child of that age'. So, for children, the standard of care is
measured according to the age of the child. Also, the occupier should guard against any kind of attraction that
places a child visitor at risk of harm. This was shown in the case of Taylor v Glasgow Corporation (1923). There
is a defence for the occupier when very young unsupervised children are injured. The courts consider that the
child should be supervised by a parent or guardian. This was shown in the case of Phipps v Rochester
Corporation (1955). The legal principle- the occupier is entitled to expect that parents should not allow their
young children to go places that are potentially unsafe. The difficulty with this defence is that there is no set
age limit. Even if there is an allurement on the premises, there is no liability on the occupier if the damage or
injury suffered is not foreseeable. This was shown in the case of Jolley v London Borough of Sutton (2000).
There are also professionals. The occupier will owe the common duty of care to a professional coming onto the
premises. However, by s2(3)(b) of the Occupiers' Liability Act 1957, an occupier can expect that a person in the
exercise of their work will 'appreciate and guard against any special risks ordinarily incident to it so far as the
occupier leaves him free to do so'. This was shown in the case of Roles v Nathan (1963). The legal principle- an
occupier can expect that a professional will guard against risks associated with their work. Independent
contractors. As discussed, a lawful visitor will be owed the common duty of care while on the occupier's land.
However, if the visitor is injured by a professional's negligent work, the occupier may have a defence and be
able to pass the claim to the professional. Section 2(4) of the Occupiers' Liability Act 1957 states: Where
damage is caused to a visitor by a danger due to the faulty execution of any work of construction, maintenance
or repair by an independent contractor employed by the occupier, the occupier is not to be treated without
more as answerable for the danger if in all the circumstances he had acted reasonably in entrusting the work
to the independent contractor and had taken such steps (if any) as he reasonably ought in order to satisfy
himself that the contractor was competent and that the work had been properly done. From this, three
requirements will apply, and all have to be satisfied.
1) It must be reasonable for the occupier to have given the work to the independent contractor
2) The contractor hired must be competent to carry out the task
3)The occupier must check that the work has been properly done. If all three conditions are satisfied, the
occupier will have a defence to a claim and the injured claimant will have to claim directly against the
contractor. This was shown in the case of Bottomley v Todmorden Cricket Club (2003)
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There are defences to protect the occupier. A sign warning of danger can amount to a full defence for the
occupier. The warning of the danger has to be clearly set out. The existence of a warning sign can be a full
defence against an adult visitor. Whether it will be a defence against a child visitor will depend on the age and
understanding of the child. The older the child, the more likely it will be a valid defence. On the notice, an
occupier may attempt to exclude or limit their responsibility. If the occupier is a business, it cannot exclude
liability for death or personal injury caused by negligence, but it can exclude liability for damage to property
such as clothes, bags, or tools. This is now contained in the Consumer Rights Act 2015. If the visitor has
consented or agreed to run the risk of injury on the occupier's premises, this acts as a complete defence for
the occupier and they will not be liable to pay any damages to the injured visitor. If the visitor is partly to
blame for the accident, the occupier can allege that the visitor has been contributory negligence. This could
operate if, for example, the visitor has not worn protective clothing or shoes as recommended when going on
to the occupier's land. If this is the case the court can, under the Law Reform (Contributory Negligence) Act
1945, fix a percentage of the visitor's responsibility and the damages will be reduced by that percentage. The
defences of warning notices, consent, and contributory negligence apply to child visitors, but whether the
occupier can rely on these as a defence will depend on the age and understanding of the child. If the occupier
is liable for breach of their duty of care to the visitor, the remedy damages. The court can award damages for
personal injury suffered and for any property damaged. Lawful visitors are covered by the Occupiers' Liability
Act 1957. Non-visitors, or trespassers, may be covered by the Occupiers' Liability Act 1984. According to s1(1)
(a), a duty is owed by the occupier to people other than lawful visitors for injury on the premises by reason of
any danger due to the state of the premises or things done or omitted to be done on them. A non-visitor or
trespasser can be any of the following: Someone who has entered the occupier's premises without any
permission, A lawful visitor who stays on premises after permission to be there has been removed, A lawful
visitor who has entered premises with permission, but then exceeds their permission and enters a premises
they are not supposed to go.
The Occupiers' Liability Act 1984 gives trespassers a right to claim compensation when they have been injured
while trespassing. Damage to property is not covered. However, there have been a number of court decisions
that have restricted whether a duty is owed to trespassers and, if a duty is owed, whether the occupier is
liable. The occupier will only owe a duty under s1(3) under the following circumstances: They are aware of the
danger or have reasonable grounds to believe it exists, They know, or have reasonable grounds to believe, that
the other is in the vicinity of the danger, The risk is one against which, in all the circumstances of the case, they
may be expected to offer the other some protection. The duty owed under s1(4) is to: Take such care as is
reasonable in the circumstances to see that the trespasser is not injured by reason of the danger. The danger
referred to in these sections is the object or part of the land on which the trespasser is injured. The standard of
care is an objective one - in other words, what the reasonable person would have done to secure their
premises. What is required of the occupier depends on the circumstances of each case.
The greater the risk of injury, the more precautions the occupier will have to take. The following will have to be
taken into account: The type and condition of the premises, The amount of danger, Whether it is possible to
take precautions and The age of the trespasser. There are adult trespassers. When considering claims under
the Occupiers' Liability Act 1984, the courts have introduced the concept of obvious dangers, especially for
adult trespassers. The occupier will not be liable if the trespasser is injured by an obvious danger. This is shown
in the case of Ratcliff McConnell (1999). The time of the day and the time of year when the accident happened
will be relevant as to whether the occupier owes a duty of care. This is shown in the case of Donoghue v
Folkestone Properties (2003). Legal principle- an occupier does not owe a duty of care to a trespasser who is
injured by an obvious danger at an unexpected time of day or year. An occupier does not have to spend lots of
money in making premises safe from obvious dangers. This is shown in the case of Tomlinson v Congleton
Borough Council (2003). Legal principle- the occupier does not have to make premises safe for trespassers
against obvious dangers. The occupier will not be liable if they had no reason to suspect the presence of a
trespasser. This is shown in the case of Higgs v Foster (2004). Legal principle- an occupier will not be liable if
they are unaware of the presence of danger. The occupier will not be liable if they were not aware of the
danger or had no reason to suspect the danger existed. This is portrayed in the case of Rhind v Astbury Water
Park (2004).
Child trespassers: The law provides protection to child visitors if an occupier has dangerous premises where, or
close to where, children might play. Children, depending on their age, are held to a different standard than
adults because they do not have the same knowledge and experience. A danger that is obvious to an adult may
not be obvious to a child. This is shown in the case of Keown v Coventry Healthcare NHS Trust (2006). The
court will take into account the child trespasser’s age and understanding in deciding what it is reasonable for
the occupier to do to protect their property against injury by obvious risks. The defences of consent,
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contributory negligence, and warning notices, as explained in the section on the Occupiers' Liability Act 1957,
apply to trespassers as well as lawful visitors. In the cases of child trespassers, whether these defences will be
successful or not depends on the age of the child. If the occupier is liable for breach of duty to a trespasser, the
remedy that can be claimed is damages for personal injury only. Damage to personal property e.g., clothes
cannot be claimed.

Vicarious liability:

Vicarious liability shifts the burden of compensating the victim of an accident onto someone other than the
person who committed the tort. The clearest example is where an employer has to pay for a tort committed by
an employee. It imposes strict liability on the employers as they will not be at fault themselves or have directly
caused the accident but will still be liable to pay compensation. An employer is also more likely to have the
financial resources to pay compensation than the employee - either from funds or through liability insurance.
There are two conditions to be satisfied: The person who committed the tort is an employee as opposed to an
independent contractor (or a self-employed person), They were acting in the course of their employment.
Whether a worker is regarded as employed or self-employed for the purposes of vicarious liability is a legal
test, as opposed to a person's employment status for tax purposes. There are several tests that can be used:
The control test - this determines how much control the employer had over the employee in the way the
employee did their work, which may be difficult as employers are often not in full control of their employees if
they are working away from the place of work. In Yewens v Noakes (1880), it was said that this test involved
asking whether the employer had the right to control what was done and the way in which it was done. The
features that could be taken into account included the Power to employ the worker, the right to control how
the work was done, the right to suspend or dismiss the worker and the payment of wages. This test does not
apply to workers now but a case where it did was Hawley v Luminar Leisure Ltd (2006).
The integration test - if a person's work is fully integrated into the business, the business will be vicariously
liable for the person's actions. The economic reality or multiple tests - this looks at the whole situation
between the worker and the employer including factors such as Tools, equipment, or uniform - who owns any
tools, equipment, or uniform used in the work? Payments - an employee will receive regular payments on
weekly or monthly terms but a self-employed person is likely to receive a single payment for the whole job,
Tax, pension, and National Insurance - an employee will usually have these deducted from the regular
payments and these payments will be sent to HM Revenue and Customs (HMRC). A self-employed person will
deal with their own tax arrangements and make tax payments directly to HMRC.
To prove whether an employer is liable, it has to be proved whether the employee committing the tort was
acting in the course of employment. This again is a legal test and does not merely cover committing a tort in
the workplace.
If the employee is doing their job but acts against the orders in the way they, do it, the employer can still be
liable for any tort committed by them. This is shown in the case of Limpus v London General (1862).
If the employee commits a crime during their work, the employer may be liable to the victim of the crime if
there's a close connection between the crime and what the employee was employed to do. This is shown in
the case of Lister v Hesley Hall (2001). If the employee does a job badly, the employer can be liable for any
negligent actions that cause injury to another. This is shown in the case of Century Insurance v Northern
Ireland Road Transport Board (1942). If the employee causes injury or damage to another while doing
something outside the area or time of their work, the employer will not be liable. This is shown in the case of
Hilton v Thomas Burton (Rhodes) Ltd (1961).

Case Study 1-Phillipe:

In the case of Phillipe, because he placed a climbing frame on one side of the course, it caused the children
Szymon, Madga, and the builder George to injure themselves. Since Philipe was the new owner of a large golf
course, which means he is the occupier of the golf course in which he now owes a duty of care to all his lawful
visitors, trespassers, etc. While Phillipe was looking around the golf course, he came across an old climbing
frame that used to be part of children's play. Since the climbing frame appeared unsafe to Phillipe, he did not
want anyone near those grounds which is reasonable, in which he erected a high fence with many 'NO ENTRY'
signs around it, so no children or visitors used that area. This shows that Phillipe took responsibility and made
reasonable safety decisions just in case someone trespassed which would have resulted in facing dangers.
However, 13-year-olds Syzmon and Madga climbed over the fence and into the play area and the climbing
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frame despite several 'NO ENTRY' signs around the high fence. By not following these signs, Szymon fell
backward off the climbing frame, breaking both his legs and his mobile phone in his pocket.
Since Szymon and Madga were not welcomed on the site due to obvious signs around the fence, it has caused
one of the injury. The law does protect child visitors if the occupier has dangerous premises where, or close to
where, children might play. Children, depending on their age, are held to a different standard from adults
because they do not have the same knowledge and experience, for example, a danger may seem obvious to an
adult but may not seem dangerous to a child. However, since Szymon and Madga were 13 years of age, they
have more understanding and better reading skills to know what the signs were telling them. Both Szymon and
Madga were behaving in a risky way which led to Szymon injuring himself. This shows that Phillipe may not be
held responsible since he placed small safety measures to protect people from entering the premises and from
hurting themselves. The possible defences for Phillipe is contributory responsibility. Despite the children's
efforts in ignoring the signs and climbing the high fence, Phillipe erected a high fence and multiple warning
signs with clear bold writing of 'NO ENTRY'. Another defence is a warning, which again is Phillipe placing
warning signs. These defences will likely be successful as they will be classified as child trespassers due to the
children being 13 years of age, and they have an understanding of what a warning sign is and specifically what
'NO ENTRY' means. This shows that Phillipe cannot be held liable for the children's injury, however, if there has
been a breach of duty, the trespasser can only claim for damages of personal injury. The next day, Phillipe
hired George, a builder, to take down the climbing frame and paid We Lift to erect scaffolding so that George
could reach the top of the climbing frame safely.
However, when George climbed on the scaffolding, the ladder slipped and he fell, breaking his arm. When the
site was inspected, it was discovered that the ladder had not been fitted properly. Since George is a lawful
visitor, he has permission to be on the premises, but the premises do not have to be completely safe since he
is an adult, it just has to be reasonably safe for people to be on the premises. The likelihood of an adult
realizing risk is far greater than that of children. Since the ladder was not fitted properly which led to an
accident of George falling off a ladder, Phillpe cannot be held liable for this injury since the ladder was
Georges’s and not Phillipe’s. It can be argued that George is at fault and Phillipe can't be held responsible but
also the company can be held liable for not installing the scaffolding properly and they should have adequately
checked the equipment before allowing access to others, so the company had a duty of care and breached that
duty of care by failing to install the ladder correctly for George to then use which resulted in George slipping
and breaking his arm. There is also a chance where Phillpe can be held liable, which is not doing research into
the company and just hiring them for the sake of it which he then owes a duty of care to George.
Following the incident, William will be held responsible for not putting the handbrake on which led to a cyclist
being injured. William should have checked twice before leaving the car to see if the handbrake was on or not
since he's an adult, it suggests he has been driving for some time. He was also on duty to take down a
scaffolding but took a detour to visit his grandmother while still being on duty which led to the cyclist falling off
and suffering from a head injury, therefore he cannot claim compensation from the company since the
company will not be held liable.
Overall, Philipe cannot be held responsible for any of the accidents claimed because none of the elements
could be successfully proved. Phillipe did not violate or breach the duty because he took safety measures by
erecting a high fence and placing multiple 'NO ENTRY' signs. He also could not foresee the possibility of two 13-
year-old children climbing over the fence despite the warning signs. Therefore, he is not responsible for the
children's personal injury and for the builder's inability to protect himself from dangers on site that led to his
injury in the first place.

Case study 2-Elin:

For this case, Elin hosted a garden party where a 3-year-old hit her head on a large stone that was sitting at the
bottom of the pond and a paramedic hit his face on the floor and lost a tooth. Elin had invited her neighbours
and their children over for a party that took place in her garden. This shows that Elin was the occupier of the
property and therefore she owes a responsibility to anyone who is there, either a lawful visitor or a trespasser.
Angharad, a 3-year-old girl, who wandered over to the pond at the bottom of her garden to search for fish had
tripped over a rock, falling into the pond and hitting her head on a stone. Here Elin is clearly responsible
because she had a duty of care, in which she breached her duty by failing to ensure the garden was completely
safe since the children were invited. Elin should have had the sense that children will be less careful than
adults, especially children under 10 years old.
However, it can be argued that since Angharad was just 3 years old, she should have been watched by her
parents/ guardians. Since the parents/ guardians did not pay attention to where Angharad was, Elin might be
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able to use this as a defence to prove she is not liable. It was then that the ambulance was called to help
Angharad with her injuries, but when the paramedic Edward arrived, he tripped over a garden hose and as a
result significant injuries to his face and teeth. This now makes Elin liable and responsible for Edward's injuries
since she carelessly left the garden hose on the floor, indicating she breached her duty of care, causing more
than one person to suffer from serious injuries. Further, As Edward was a paramedic it makes him a lawful
visitor along with being a professional visitor as he was emergency called to treat Angharad of her injuries
since Edward was an adult visitor, the premises do not have to be completely safe but reasonably safe and the
garden hose left carelessly by Elin suggests that it was not reasonably safe for lawful visitors, adults or even
children. Edward's occupation is a professional working in the medical field and since he is a paramedic, he had
to rush to anyone who was injured, in this case, it was Angharad, so the cause of the fall was out of his ability
so therefore, Elin will be held liable.
S2(3)(a) of the Occupiers' Liability Act 1957 states that 'an occupier must be prepared for children to be less
careful than adults' and the occupier must also guard against any allurement that places a child visitor at risk of
harm'. Elin was aware that children were invited to her garden party and yet did not take precautionary
measures, knowing that the garden and the pond can be attractions to a child visitor.
To successfully claim for occupiers’ liability, the danger must be foreseeable. The large stone near the pond
may not have been a foreseeable risk for an adult but it can be for a child. Elin failed to put any warning signs
or small fences around the pond in case of an accident. Also, the garden hose could be seen as a foreseeable
risk because it was left carelessly. This indicates the premises were not reasonably safe for any adult and child
visitors. Dr. Naylor will be held liable for not checking Edward's medical record before injecting pain relief
medicine which he has a rare condition and is allergic to. The doctor has breached his duty of care since he
should have checked his medical records beforehand. The defences for Elin's for the Angharad case could be
contributory negligence because all small children could be supervised, and the stone was not left carelessly
since it was part of the pond/ garden. Elin as an occupier of her land is entitled to assume that small children
will be properly supervised, therefore she may not be held liable for this case. However, there is no defence
for Elin for Edward's case as he would not have fallen if the garden hose was not left carelessly, and therefore,
she will be held liable and will have to pay compensation for his personal injuries to Edward.
Overall, since all aspects of the occupiers’ liability can be proven and the child was not at fault, Elin will be held
liable for the occupiers' liability and negligence for Edward, and on the other hand, she may not be found
responsible for Angharad because the premises did not portray a real danger as children as young as Angharad
should be supervised.

Task 2:

Learning aim D: Explore liability for private nuisance and Rylands V Fletcher:

3rd April 2023

Dear Jessica

I am writing to inform you of what private nuisance is by using the famous case of Rylands v Fletcher (1868). A
private nuisance is an unlawful interference with a person's use or enjoyment of land coming from
neighbouring land. The interference will generally be due to intangible matters causing annoyance to a person
e.g., smoke or noise. It can also be a physical interference such as tree roots growing into a neighbouring land.
The person who can take an action in a nuisance is the person suffering from the nuisance and they must have
an interest in the land as an owner or tenant. The person causing the problem can be sued, whether or not
they have an interest in the land. A private nuisance is all about reasonableness in the use of the property. If
the court decides that the action is reasonable, they will not find it a nuisance. However, if they find the action
unreasonable, it can be a nuisance.
In order to decide whether an action cueing the nuisance is reasonable or not, the court will take various
factors into consideration. Locality and character of the neighbourhood - it was said in Sturges v Bridgeman
(1879) that what would be a nuisance in Belgrave Square would not be so in Bermondsey. So, if the problem is
taking place in a quiet residential area it may be a nuisance, whereas if it is taking place in an industrial area it
is less likely to be considered a nuisance. The duration of the problem - the longer the act goes on, the more
likely it is to be unreasonable. However, in the case Crown River Cruises v Kimbolton Fireworks Ltd (1996), a
one-off 20-minute firework display was enough to amount to a nuisance. The time of day - if the act is being
carried out in the evening or at night, it is more likely to be a nuisance than if it is being carried out during the
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day. The social utility or usefulness of the action - if the activity causing the nuisance is providing employment
or a social benefit in the area, it may be considered to be reasonable.

Defences of a nuisance action:

Statutory authority - if permission for the use of the land has been given by the local authority, the action may
not be a nuisance. In Allen v Gulf Oil Refinery 1981. the claimant brought an action in nuisance for the smell,
noise, and vibration created by an oil refinery. Building the oil refinery was authorised by an Act of Parliament.
The defendant was not liable as it had a defence of statutory authority. A prescription may be a defence to an
action - If the case has been ongoing for at least 20 years and there has been no lawsuit between the parties
during that period, the defendant can be said to have a prescriptive right to continue the action. It has to be a
one-on-one situation. If the complainant comes into an environment where the defendant has already carried
out an action without receiving any complaints, the defendant cannot argue that there has never been an
issue because the claimant has just recently moved into the handling in the case of Miller v Jackson (1977). If it
can be shown the claimant or their property is particularly sensitive, then the action may not be a nuisance,
this is shown in the case of Robinson v Kilvert (1889).

Remedies:

Before the court can order a remedy, a person will have to bear the nuisance for some time.
This is especially true in the case of noise disturbance, where the person who is affected must obtain extensive
proof of the amount and duration of the nuisance before the courts can take action. If the defendant has been
causing a nuisance, the court may issue an injunction to either fully stop the problem or to partially restrict it -
for example, by limiting the hours during which the crime can occur.
Alternative dispute resolution (ADR) as a remedy will often fail or not be possible in a nuisance action as the
parties become fixed in their positions as they try to protect their property. Whether or not the court orders
the action to end, the parties will still have to live together, and there could be ongoing animosity between
them. As a result, even a good legal argument isn't always the best option.
The Supreme Court has recently considered some of the long-established rules of nuisance, as seen in
Coventry v Lawrence (2014).

Rylands V Fletcher Liability:

If the claimant sufferers actual damage to their property, an action in nuisance is unlikely to be appropriate.
Instead, an action using the strict liability claim of Rylands v Fletcher could be used as an alternative to
claiming negligence. In the case of Rylands v Fletcher (1868), the legal principle is the claimant must show: the
storage of a non-naturally occurring material, the material escapes, and it causes reasonably foreseeable
damage to adjoining property.
The material to be deposited must be non-natural, and it must be brought onto the ground and stored there.
Garden fertiliser and fireworks, for example, are not naturally occurring materials, and liability for these
materials has previously been established. Water for domestic use, on the other hand, was deemed a naturally
occurring material in Rickards v Lothian (1913), and the occupier was not responsible when the flat below was
flooded.
There must be a movement of the material from one property onto adjoining property. The material that has
escaped must cause reasonably foreseeable damage to adjoining property. This was shown in the case of
Cambridge Water Company v Eastern Countries Leather (1994).
As a strict liability tort, Rylands v Fletcher should be easier for a complainant to prove than negligence,
particularly when dangerous material has escaped. It is not necessary to demonstrate how or why the material
escaped, only that it did and caused damage to adjacent land. In many areas such as pollution of water,
radioactive material, and defective products, there is statutory regulation so the need for the tort of Rylands v
Fletcher has disappeared. Examples include the Reservoirs Act of 1975, when the water has accumulated, and
the Nuclear Installations Act of 1965 and 1969, which cover the escape of radioactive substances. These
statutory regulations may also allow recovery of damages for personal injury, which cannot be claimed under
Rylands v Fletcher.
Defences:

The possible defences to an action in Rylands v Fletcher include:

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o An act of a stranger - the material escaped because of an act of a stranger over whom the defendant
had no control
o Acts of God - natural events such as an earthquake flood or other natural disaster which caused the
material to escape, meaning the defendant would not be liable
o Statutory authority - there is permission given by the local authority for the storage of material
o Consent - the claimant was fully or partly at fault for the escape of the material

When the case of Rylands v Fletcher was decided, it was thought to be a broad, strict liability action that
included both property damage and personal injury. As time passed, however, the courts became more
restrictive, as seen in Rickards v Lothian (1913).
Other factors, such as the necessity of non-natural use of land, made the tort more difficult to establish.
Demonstrating that the use of land was a natural use was the simplest way to defeat a lawsuit. Claimants were
encouraged to use the tort of negligence, even though it required proof of fault. In Transco olc v Stockport
MBC (2003), the House of Lords rejected the idea of abandoning the tort or that it should be treated as having
been absorbed within the general law of negligence. They confirmed that an interest in the land affected by
the escaping material is needed and personal injury is not within the scope of a claim.

Remedies:

If the claim is successful the claimant can claim damages for the damage caused to their property. An
injunction to prevent further damage may also be appropriate.
Jessica, the bike shop called 2W1C bikes is not liable for private nuisance because you live on a busy high street
and also the shop located is right next to you so there will always be noise and light reflecting towards your
room. If the court decides that the action is reasonable, they will not find it a nuisance and in this case, the
court will be less likely to find this a nuisance. However, if they find the action unreasonable, it can be a
nuisance.
In order to decide whether an action cueing the nuisance is reasonable or not, the court will take various
factors into consideration. Locality and character of the neighbourhood - since this 'nuisance' is taking place in
an industrial area it is less likely to be considered a nuisance. The duration of the problem - Since the bike shop
is planning to expand the business again in 6 months, this may be unreasonable. The social utility or usefulness
of the action - since the bike shop is hiring 10 more staff to expand their workshop, the action is not
unreasonable as it is providing employment.
If you do file a lawsuit on private nuisance There will be defences available to Die from the bike shop as the
Statutory authority - a new local government initiative has been launched which means that anyone who can
cycle to work is able to get a free bike. In order to meet the demand, 2W1C Bikes has decided to extend their
opening hours to 8 am to 8 pm Monday to Friday, which means they have been given permission. Also, if the
bike shop hasn't received any other complaints from others about noise, then your complaint is not
reasonable.
You can order a remedy. Before the court can order a remedy, you will have to bear the nuisance for some
time, you must obtain extensive proof of the amount and duration of the nuisance before the courts can take
action. If the bike shop has been causing a nuisance, the court may issue an injunction to either fully stop the
problem or to partially restrict it.
Overall, the bike shop located opposite your house will not be held liable for private nuisance as you live in an
industrial area, where noise and light will always interfere. The bike shop is also providing employment and
has been doing the extra work to match the new local government initiative therefore this is all reasonable
nuisances. However since Diez is going to expand the business again within 6 months, you may ask for a
remedy so the court can reduce the hours of opening times.

Yours sincerely
Hafsa Mehmood
Smith and Jones
HAFSA MEHMOOD 664138

4th April 2023

Dear Samira

I am writing to inform you of what private nuisance is by using the famous case of Rylands v Fletcher (1868). A
private nuisance is an unlawful interference with a person's use or enjoyment of land coming from
neighbouring land. The interference will generally be due to intangible matters causing annoyance to a person
e. smoke or noise. It can also be a physical interference such as tree roots growing into a neighbouring land.
The person who can take an action in a nuisance is the person suffering from the nuisance and they must have
an interest in the land as an owner or tenant. The person causing the problem can be sued, whether or not
they have an interest in the land.
A private nuisance is all about reasonableness in the use of the property. If the court decides that the action is
reasonable, they will not find it a nuisance. However, if they find the action unreasonable, it can be a nuisance.
In order to decide whether an action cueing the nuisance Is reasonable or not, the court will take various
factors into consideration. Locality and character of the neighbourhood - it was said in Sturges v Bridgeman
(1879) that what would be a nuisance in Belgrave Square would not be so in Bermondsey. So, if the problem is
taking place in a quiet residential area it may be a nuisance, whereas if it is taking place in an industrial area it
is less likely to be considered a nuisance. The duration of the problem - the longer the act goes on, the more
likely it is to be unreasonable. However, in the case Crown River Cruises v Kimbolton Fireworks Ltd (1996), a
one-off 20-minute firework display was enough to amount to a nuisance. The time of day - if the act is being
carried out in the evening or at night, it is more likely to be a nuisance than if it is being carried out during the
day. The social utility or usefulness of the action - if the activity causing the nuisance is providing employment
or a social benefit in the area, it may be considered to be reasonable.

Defences of a nuisance action:

Statutory authority - if permission for the use of the land has been given by the local authority, the action may
not be a nuisance. In Allen v Gulf Oil Refinery 1981, the claimant brought an action in nuisance for the smell,
noise and vibration created by an oil refinery. Building the oil refinery was authorised by an Act of Parliament.
The defendant was not liable as it had a defence of statutory authority. Prescription may be a defence to an
action - If the case has been ongoing for at least 20 years and there has been no lawsuit between the parties
during that period, the defendant can be said to have a prescriptive right to continue the action. It has to be a
one-on-one situation. If the complainant comes into an environment where the defendant has already carried
out an action without receiving any complaints, the defendant cannot argue that there has never been an
issue because the claimant has just recently moved into the handling in the case of Miller v Jackson (1977). If it
can be shown the claimant or their property is particularly sensitive, then the action may not be a nuisance,
this is shown in the case of Robinson v Kilvert (1889).

Remedies:

Before the court can order a remedy, a person will have to bear the nuisance for some time.
This is especially true in the case of noise disturbance, where the person who is affected must obtain extensive
proof of the amount and duration of the nuisance before the courts can take action. If the defendant has been
causing a nuisance, the court may issue an injunction to either fully stop the problem or to partially restrict it -
for example, by limiting the hours during which the crime can occur.
Alternative dispute resolution (ADR) as a remedy will often fail or not be possible in a nuisance action as the
parties become fixed in their positions as they try to protect their property. Whether or not the court orders
the action to end, the parties will still have to live together, and there could be ongoing animosity between
them. As a result, even a good legal argument isn't always the best option. The Supreme Court has recently
considered some of the long-established rules of nuisance, as seen in Coventry v Lawrence (2014).

Rylands V Fletcher Liability

If the claimant sufferers actual damage to their property, an action in nuisance is unlikely to be appropriate.
Instead, an action using the strict liability claim of Rylands v Fletcher could be used as an alternative to
claiming negligence. In the case of Rylands v Fletcher
(1868), the legal principle is the claimant must show: the storage of a non-naturally occurring material, the
material escapes, and it causes reasonably foreseeable damage to adjoining property.
HAFSA MEHMOOD 664138

The material to be deposited must be non-natural, and it must be brought onto the ground and stored there.
Garden fertiliser and fireworks, for example, are not naturally occurring materials, and liability for these
materials has previously been established. Water for domestic use, on the other hand, was deemed a naturally
occurring material in Rickards v Lothian (1913), and the occupier was not responsible when the flat below was
flooded.
There must be a movement of the material from one property onto adjoining property. The material that has
escaped must cause reasonably foreseeable damage to adjoining property. This was shown in the case of
Cambridge Water Company v Eastern Countries Leather (1994). As a strict liability tort, Rylands v Fletcher
should be easier for a complainant to prove than negligence, particularly when dangerous material has
escaped. It is not necessary to demonstrate how or why the material escaped, only that it did and caused
damage to adjacent land. In many areas such as pollution of water, radioactive material, and defective
products, there is statutory regulation so the need for the tort of Rylands v Fletcher has disappeared. Examples
include the Reservoirs Act of 1975, when the water has accumulated, and the Nuclear Installations Act of 1965
and 1969, which cover the escape of radioactive substances. These statutory regulations may also allow
recovery of damages for personal injury, which cannot be claimed under Rylands v Fletcher.

Defences:

The possible defences to an action in Rylands v Fletcher include:

o An act of a stranger - the material escaped because of an act of a stranger over whom the defendant
had no control.
o Acts of God - natural events such as an earthquake flood or other natural disaster which caused the
material to escape, meaning the defendant would not be liable.
o Statutory authority - there is permission given by the local authority for the storage of material.
o Consent - the claimant was fully or partly at fault for the escape of the material.

When the case of Rylands v Fletcher was decided, it was thought to be a broad, strict liability action that
included both property damage and personal injury. As time passed, however, the courts became more
restrictive, as seen in Rickards v Lothian (1913).
Other factors, such as the necessity of non-natural use of land, made the tort more difficult to establish.
Demonstrating that the use of land was a natural use was the simplest way to defeat a lawsuit. Claimants were
encouraged to use the tort of negligence, even though it required proof of fault. In Transco pl v Stockport MBC
(2003), the House of Lords rejected the idea of abandoning the tort or that it should be treated as having been
absorbed within the general law of negligence. They confirmed that an interest in the land affected by the
escaping material is needed and personal injury is not within the scope of a claim.

Remedies:

If the claim is successful, the claimant can claim damages for the damage caused to their property. An
injunction to prevent further damage may also be appropriate.
Samira, since you have suffered actual damage to your property, an action in nuisance is unlikely to be
appropriate. Instead, an action using the strict liability claim of Rylands v Fletcher could be used as an
alternative to claiming negligence. In the case of Rylands v Fletcher (1868), the legal principle is the claimant
must show: the storage of a non-naturally occurring material, the material escapes, and it causes reasonably
foreseeable damage to adjoining property. Also, since the water that escaped from the banks has caused
reasonably foreseeable damage to your property, you are able to claim negligence. Samira, you do not need to
demonstrate how or why the water escaped, only that it did and caused damage to your land/property and
therefore Mohammed will be held liable.
However, there are possible defences for Mohammed in Rylands v Fletcher liability. Acts of God - since a
natural event e.g., a thunderstorm has caused the water to escape, this means the defendant would not be
liable. If your claim is successful, you can claim damages for the damage caused to your property.
An injunction to prevent further damage may also be appropriate.
Overall, Samira, you have suffered actual damage to your land where you are not able to fulfill the orders you
have accepted from your new clients. Therefore you are able to claim damages for the damage caused by
Mohammed's large lake of water.
HAFSA MEHMOOD 664138

Yours Sincerely
Hafsa Mehmood
Smith and Jones