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Published: Fri, 02 Feb 2018
Tort Law and Liabilities in Different Types of Tort
Example Tort Law Problem Question
David has recently bought his first house where he now lives with his wife and children. The house is located on Highfield Road opposite a factory unit (situated on Highfield Road in the Edward’s Industrial estate) owned by Harrington & Nephew Ltd. in which pre-cast concrete units are manufactured. Harrington & Nephew Ltd. was recently successful in winning various contracts which have resulted in the factory operating all day and throughout the night. This has caused David and his family to lose sleep through noise from the factory operations and noise from wagons coming to and leaving the factory.
Aimee, David’s wife has developed an allergy to the dust, which is emitted from the factory and now has to use inhalers every day. The family is unable to sit out in their garden and enjoy the summer due to the dust and noise, and a rose tree which they brought with them and was given to them as a wedding present 15 years ago has now died – a horticultural expert says it is because of how the dust is affecting the soil.
Wally, David’s son parks his car outside the house on the road and the paintwork has been damaged by chemical smuts emitted from the factory’s chimney. Wally is so incensed by this that he immediately goes round to the factory uninvited and storms into the manager’s office to give him a piece of his mind. The manager is not there and because of Wally’s attitude and general manner, the secretary insists that Wally leaves the premises immediately. Wally refuses to do so. This results in something of a scuffle and as a result a window is broken.
Advise Harrington & Nephew Ltd as to any liabilities they may have to David and his family, and any defences or remedies that may be applicable, along with any case they may have against David and/or his family.
Potential Liabilities of Harrington & Nephew Ltd. (“Harrington”) to David & Family
The foremost cause of action against Harrington arises in the tort of “nuisance”- commonly defined as “interference for a substantial length of time by owners or occupiers of property with the use or enjoyment of neighbouring property”.1 As such, nuisance may be public or private in nature, i.e., while the former involves indiscriminate widespread effects on a community or class of persons so as to constitute a criminal offence,2 the latter concerns the harm to the plaintiff in particular.3 In the absence of any mention of other complainants, apart from David’s family, the given facts reveal a case of the latter category, i.e., a tort of private nuisance.
The tort of “nuisance” premised on the maxim sic utere tuo ut alienum non laedas, arises where a person makes such use of his property unreasonably and unnecessarily so as to cause inconvenience to his neighbour.4 Such inconvenience may be in the form of (a) interference with the plaintiff’s beneficial use of the property, and/or (b) physical injury to the plaintiff’s property.5 Notably, the plaintiff’s burden of proof is more onerous in case of the former, as upheld in St. Helens Smelting Co. v Tipping.6 The present facts entail potential liabilities founded on both of these forms of nuisance, elaborated below.
Interference with beneficial use of property
It is alleged by David’s family that the noise all throughout day and night from the factory and the movement of wagons has caused them loss of sleep. Further, they are unable to sit out in the garden due to the noise and dust emissions, which have also impacted their trees and shrubs. Moreover, the dust emitted by Harrington has injured the health of David’s wife, who, as a consequence, is required to use inhalers on a regular basis. Overall, owing to Harrington’s operations, they are allegedly prevented from the enjoyment of their property.
Whether all of these constitute a prima facie case of nuisance by interference with David’s beneficial use of property,7 depends upon the test of reasonability, i.e., whether a reasonable man living in that locality would take the same view of the matter.8 Explained by Lord Macmillan in the case of Glasgow Corporation v Muir, 9a reasonable man connotes “a person whose notions and standards of behaviour and responsibility correspond with those generally obtained among ordinary people in our society at the present time, who seldom allows his emotions to overbear his reason and whose habits are moderate and whose disposition is equable”.10 Thus, while there is no strict formula to define what precise level of noise, dust or smoke would suffice for a claim of nuisance, courts have ordinarily looked into the substance of the interference11 to decide that noise causing deprivation of sleep,12 or fumes damaging trees and shrubs,13 as in the present facts, constitute interference with comfort and enjoyment of property,14 and thus, a tort of nuisance. This is more so, because of the continuity and frequency of such noise and emissions which are relevant in establishing that Harrington has created a situation qualifying to be a potential nuisance.15
Considering that such claim is based on the test of reasonability, an inconvenience or interference with enjoyment necessarily depends upon the circumstances of the place or location where the alleged wrong occurs.16 Courts have ruled that one must pay heed to a property’s surroundings when determining whether a nuisance exists.17 Thus, one “who dislikes noise must not set up his abode in the heart of a great city,” and likewise, “he who loves peace and quiet must not live in a locality devoted to business of making boilers and steamships”.18 In other words, the standard of comfort and convenience attributable to the plaintiff is lowered in certain localities.19 Accordingly, Harrington may assert that as David’s house was located just opposite to the Edward’s industrial estate, the expected levels of noise and emissions in such locality were higher than a purely residential area, which lowers the standards of reasonable comfort, convenience and enjoyment attributable to David’s property. Hence, failing the reasonability test in the specific circumstances of the place, Harrington may plead to ought not be held liable for the tort of nuisance.20
Further, without prejudice to the above, Harrington may seek to exclude liability for the damage to the 15 years’ old rose tree, which was a special and delicate feature from a horticulture standpoint. Similar stance was taken in respect of damage to certain orchid plantations by the emissions and fumes from the defendant’s factory in the case of McKinnon Industries v Walker.21 Additionally, as the car owned by David’s son- Wally was parked on the road outside the house, it did not fall within the ambit of enjoyment of David’s property, and thus, any damage caused to its paintwork from chemical smuts emitted by Harrington cannot be reckoned to constitute nuisance as such.
Also, considering that nuisance is essentially a wrong to property and rights thereof, Harrington can plead against the liability for any alleged personal injury, such as health of David’s wife, as not falling within the scope of tort of “nuisance”.22 These defences may be pleaded in addition to others, discussed later.
Injury to property
Where an alleged wrong, regardless of any inconvenience or discomfort, makes the plaintiff’s property uninhabitable for the intended purpose or devalues it, a stronger case of nuisance is created. In other words, where the nuisance causes material damage to the property and reduces its value, the onus of proof on the plaintiff is lesser, and the defence of circumstances of place and locality, discussed above, become irrelevant and inapplicable.23
In the given facts, as is testified by the horticulture expert, the dust emissions from Harrington have, aside to causing discomfort and inconvenience, impacted the soil quality of David’s property, resulting in loss of trees and plants. Further, as property entails right to consumable air,24 the worth of David’s house is undoubtedly diminished by the dust emissions rendering the air impure and polluted. Moreover, the paintwork of the car owned by Wally, and parked adjacent to the house, has also been damaged from chemical smuts emitted by Harrington. Thus, owing to the house and property being impaired by the noise and emissions, David’s family can, aside to pecuniary damages, seek injunction25 against Harrington to discontinue its operations.
Harrington may assert “reasonable use” of its own property, as a defence to the above charges.26 Although such defence requires balancing of interests inter se the plaintiff and the defendant, the plea can nevertheless be taken up, as was raised in the case of Russell Transport v Ontario Malleable Iron,27 involving the operations of a long-standing foundry turning into nuisance for a newly found business on a previously vacant neighbouring land.28 Such use may be justified through the industrial license or permit obtained by Harrington authorising the manufacturing of pre-cast concrete units at the stated industrial zone.29
This can be further substantiated by evidence of all possible care and skills in such use by Harrington so as to prevent its operations from causing nuisance to David’s family- a plea commonly raised, for instance, in Adams v Ursell.30 The defence could further alleviate to the status of a prescriptive right, if the nuisance had continued for more than 20 years, which however, will not apply in the present facts. This is because, although Harrington may have been using its property for the factory purpose for years, the nuisance commenced only recently when David purchased the house.31 The defence of right by prescription is, thus, lost by Harrington in the present case.
Apart from the specific defences linked to the tort of nuisance, Harrington may also resort to the defence of volenti non fit injuria, meaning no person can enforce a right which he has voluntarily waived or abandoned.32 For instance, one who owns property adjoining a highway consents to the dangers incident to the ordinary use of highway.33 Such consent or waiver need not be express, i.e., may be implied or deduced from any acts, as upheld in Wilson v Darling Island Co.34 and in Morrison v Union Steamship Co. Ltd.35
It is clear from the facts that Harrington had been operating in the Edward’s industrial estate prior to David’s purchasing the house. This implies that David’s family had full knowledge of the potential nuisance at the time of purchase of the property, and by knowingly choosing to buy it regardless of Harrington’s manufacturing unit located opposite to it , had consented to, and waived such right to claim, nuisance.36 Pre-existing knowledge of risks can be adduced as an evidence of such consent or waiver.37 Similar to Commonwealth v Van Sickle,38 Harrington can allege that gross injustice will be caused if the interests of David’s family, who are newcomers to the locality, are given precedence over those of Harrington, which has been in business in that area since years before their arrival. This is more so, as the area of its operation had been for so long an industrial zone devoted to manufacturing and such similar purposes, “as to give those who had recently moved in no just right of complaint,”39 especially, as they moved in with all knowledge of the existing state of affairs.40 This defence can also be stretched to Wally’s car being improperly parked outside on the road, leaving it vulnerable to damage. Having said that, Harrington must be cognizant of contrary rulings by the judiciary in Bliss v Hall,41 and the majority decision in Miller v Jackson,42 stating that “plaintiff came to the nuisance” is no defence in law.
In terms of relief, Harrington can claim shelter under “public interest/benefits” to avoid an injunction ordering cessation of its business operations, i.e., the manufacturing operation of Harrington yields benefits to public at large, which outweighs the alleged private loss caused to David’s family. This plea was raised, although without success, in the much celebrated case of The Attorney General v The Borough of Birmingham.43 Thus, while this defence may not absolve Harrington of its liabilities in entirety, it nevertheless can help in convincing the court against an order of injunction.44 Needless to state, as much depends on the substantiality of the public interests involved, this defence is seldom upheld.45
Claim against David’s family
In respect of Wally’s uninvited entry into the factory premises and the manager’s office, Harrington can institute a suit of trespass to land. This tort emanates from, inter alia, a person’s entry into the land in possession of another without lawful justification,46 affirmed in Basely v Clarkson.47 Any invasion or intrusion of property, regardless of its form, enormity or recurrence, constitutes trespass.48 For instance, in the case of Ellis v Loftus Iron Co., the court stated that “if the defendant places a part of his foot on the claimant’s land unlawfully, it is in law as much a trespass as if he had walked half a mile on it”.49 Thus, any form of physical with the property,50 including throwing of stones or mere crossing of boundary, suffices.51 Notably, the tort of trespass to land is actionable per se, i.e., can be sued against without any proof of damage.52
In the given facts, as Wally’s access to Harrington’s premise and his forceful entry into the manager’s office was without any permission or authority, it is a clear case of trespass.53 This is further substantiated by his refusal to leave the premises despite the secretary’s insistence requiring him to depart immediately. Such act of refusal or omission to leave tantamounts to continued trespass,54 which in itself constitutes a tort, independent of the original trespass by entry into the premise. This position is firmly established by Cottreau v Rodgerson,55Cullen v Rice,56 and CPR v Gaud.57 Finally, although not essential to prove trespass, the fact that a window broke due to the scuffle reveals damage being caused by Wally to Harrington’s premise. Hence, Harrington can very well sue Wally to claim damages against the tort of trespass to its land.
1 Cunard v Antifyre 1933 1 KB 551, 556.
2 Att-Gen v PYA Quarries Ltd. 1957 2 QB 169.
3 Gertsen v Municipality of Toronto (1974) 41 DLR (3d) 646.
4 R.A. Buckley, Law of Nuisance (2nd edn., Butterworths Law 1996). See also, Tenant v Goldwin (1704) 2 Ld. Raym. 1089; and Barger v Barringer (1909) 151 N. C. 433.
5 Gaunt v Fynney (1872) LR 8 Ch. 8. See also, McLaren, ‘Nuisance Actions and the Environmental Battle’ (1972) 10 Osgoode Hall Law Journal 505.
6 (1865) 11 HLC 642.
7 Desrosiers v Sullivan Farms (1987) 76 N.B.R. (2d) 271 (CA).
8 Heuston & Buckley, Salmond and Heuston on the Law of Torts (Sweet & Maxwell 1987).
9 1943 AC 448.
10 Heuston & Buckley (n 8), 65.
11 Bone v Seale 1975 1 WLR 797.
12 Shelfer v City of London Electric Lighting Co. 1895 1 Ch. 287.
13 Tipping (n 6).
14 Walter v Selfe (1851), 29 L.J.R. (20 N.S.) 433 (Ch.).
15 Matheson v Northcote College Board of Governors 1975 2 NZLR 106.
16 Sturges v Bridgman (1879) 11 Ch.D. 852.
17 Drysdale v Dugas (1896) 26 SCR 20.
18 Heuston & Buckley (n 8), 65. See also, C.S. Kerse, Law Relating to Noise (Oyez Publishing 1975).
19 Polsue and Alfieri Ltd. v Rushmer 1907 AC 121.
20 See contrary opinion in Bamford v Turnley (1860) 3 B. &. S. 62, 122 E.R. 25.
21 1951 3 DLR 577 (PC).
22 Dymond v Pearce 1972 1 QB 496.
23 Tipping (n 6), 650 (Lord Westbury).
24 Dent v Auction Mart (1866) LR 2 Eq 238.
25 Imperial Gas Light and Coke v Broadbent (1859), 7 H.L.C. 600, 11 E.R. 239. See also, Smith v Smith (1875) L.R. 20 Eq. 500; and Beamish v Glenn (1916) 36 O.L.R. 10.
26 Jeremiah Smith, ‘Reasonable Use of One’s Own Property as a Justification for Damage to a Neighbour’ (1917) 17(5) Columbia Law Review 383.
27 1952 O.R. 621 (HC).
28 See contrary view in Att-Gen v Cole 1901 2 Ch. 205.
29 Hopkin v Hamilton Electric Light (1901) 2 O.L.R. 240.
30 1913 1 Ch. 269. See also, Drysdale (n 17).
31 Sturges (n 16).
32 Chapman v Ellesmere 1932 2 KB 431. See also, Buckpitt v Oates 1968 1 All ER 1145.
33 Esso Petroleum Co. Ltd. v Southport Corporation 1956 AC 218.
34 (1955) 95 CLR 43.
35 1964 NZLR 468.
36 Miller v Jackson 1977 QB 966 (Lord Denning M.R.)
37 Neilsen v Redel 1955 1 DLR 125. See also, Smith v Charles Baker & Sons 1891 AC 325.
38 (1845) 4 Clark 104.
39 Commonwealth v Upton (1856) 72 Mass 473.
40 Christine Meisner Rosen, ‘Knowing Industrial Pollution: Nuisance Law and the Power of Tradition in a Time of Rapid Economic Change, 1840-1864’ (2003) 8(4) Environmental History 565.
41 (1838) 4 Bing NC 183.
42 1977 QB 966.
43 (1858) 4 K. &. J. 528, 70 E.R. 220.
44 Miller (n 36).
45 Kennaway v Thompson 1981 QB 88.
46 Barker v The Queen (1983) 153 CLR 338; and Perera v Vandiyar 1953 1 WLR 672.
47 (1681) 3 Lev 37.
48 Entick v Carrington (1765) 19 St. Tr. 1029; and Woolerton and Wilson Ltd v Richard Costain Ltd. (1970) 1 W.L.R. 411.
49 (1874) L.R. 10 C.&.P 10.
50 Westripp v Baldock 1939 1 All ER 279.
51 Gregory v Piper (1829) 9 B & C 591.
52 Ashby v White (1703) 2 Ld.Raym 938.
53 Mann v Saulnier (1959) 19 DLR (2d) 130.
54 Holmes v Wilson (1839) 10 A&E 503; and Konskier v Goodman Ltd 1928 1 KB 421.
55 (1966) 53 DLR (2d) 549.
56 (1981) 120 DLR (3d) 641.
57 1949 2 KB 239.
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