Tuesday 17 October 2006

OCCUPIERS LIABILITY
The law is governed by the OCCUPIERS LIABILITY ACTS 1957 and 1984 and can be divided into three areas:

Ø A liability of an occupier of premises to a visitor or a trespasser
Ø A liability of a landlord for defects in the premises
Ø A liability of a person involved in the construction process.

It concerns the duty of an occupier, whether or not he is the owner, towards all who enter on his land.

Lawful visitor – 1957 Act applies

Trespasser – 1984 Act applies

Neither statute provides a definition of an occupier, look for the person who CONTROLS the premises: Wheat v Lacon and Co [1966].

In Harris v Birkenhead Corporation [1976] the defendant issues a compulsory purchase order over a house, but when it was vacated they did nothing to board it up. The claimant (four years old) entered through an insecure front door and fell from a second floor window. The council was held to be the occupier, even though they weren’t in actual physical possession. The local authority had the legal right to control the premises to the exclusion of the former owner and were in the best position to avoid accidents.

The 1957 Act imposes a common duty of care in respect of all LAWFUL VISITORS:

“A duty to take such care as in all the circumstances of the case is reasonable to see that the visitor is reasonably safe in using the premises for which he is invited or permitted to be there.”

Who is the visitor?:

EXPRESSLY INVITED
IMPLIED INVITATION
CONTRACT WITH THE OCCUPIER
CONTRACT WITH A THIRD PARTY
RIGHT CONFERRED BY LAW

Limitation on Permission
“Come in, but don’t ...”

PART OF THE BUILDING ONLY
PARTICULAR TIME
PARTICULAR PURPOSE

The Common Duty of Care
The occupier owes a ‘common duty of care’ to all visitors, except where s2(1) stipulates that he is free to and does extend, restrict, modify or exclude the duty to the visitor by agreement or otherwise. Thus:

VISITOR must be safe.
TAKE CARE IS AS REASONABLE IN SUCH CIRCUMSTANCES.
FOR THE PURPOSES FOR WHICH HE WAS INVITED TO BE THERE.

Special Liability
The Act provides four specific cases where an appropriate standard of care will be required:

s2(3)(a)
CHILDREN
s2(3)(b)
EXERCISE OF A CALLING
s2(4)(a)
WARNING OF DANGER
s2(4)(b)
INDEPENDENT CONTRACTORS

CHILDREN:

“An occupier must be prepared for children to be less careful than adults. If the occupier allows a child to enter the premises, then the premises must be reasonably safe for a child of that age.”

Glasgow Corporation v Taylor [1922] – a seven-year old claimant died after eating poisonous berries from a tree in a park. It was not fenced in, and there was no warning. The defendant was held to be liable.

Phipps v Rochester Corporation [1955] – the very young should have parents to supervise them. Liability may be shared between the parents and the occupier.

British Rail v Herrington [1972] – the House of Lords decided that a duty of care was owed to child trespassers through a “basic duty of common humanity”.

Jolley v Sutton LBC [1998] – a small boat was abandoned in the grounds of a block of flats owned and occupied by the defendant local authority. The boat, which was left on a grass area where children played, became derelict and rotten. The claimant, a fourteen-year-old boy, attempted to renovate the boat with a friend, and jacked it up in order to repair the hull. He was under the boat when it fell on him, causing severe injuries. The House of Lords held that the ingenuity of children in finding ways of doing mischief to themselves or others should never be underestimated. For those reasons, the judge had been correct to describe the risks as being one that children would meddle with the boat at the risk of some physical injury. Moreover, his observation that play could take the form of mimicking adult behaviour was a perceptive one, and he was justified in holding that an accident of the type which had occurred was reasonably foreseeable.

EXERCISE OF CALLING:

“An occupier may expect that a person, in the exercise of their calling, will appreciate and guard against any special risks ordinarily incident to it, so far as the occupier leaves him free to do so.”

Roles v Nathan [1963] – two chimney sweeps were killed by carbon monoxide poisoning whilst attempting to seal a sweep hole in the chimney of a boiler. There was no liability. An occupier can reasonably expect a sweep to be aware of the dangers arising from a fire.

WARNING OF DANGER:

“Where damage is caused to a visitor by a danger of which he has been warned by the occupier, the warning is not to be treated without more as absolving the occupier from liability, unless in all the circumstances it was enough to enable their visitor to be reasonably safe.”

Roles – as above. The sweeps had been warned.

INDEPENDENT CONTRACTOR:

“Where damage is caused to a visitor by a danger due to faulty execution of any work or 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 an 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.”

Woodward v Mayor of Hastings [1945] – the claimant (a child) slipped on a snow covered step at school. It had been negligently swept by a cleaner. She was an independent contractor. She was held to be liable, as was the occupiers (the local authority) as they should have checked that the work had been properly done.

Haseldine v Daw [1941] – if the job is of a technical nature, for example lift maintenance, the occupier may have discharged the duty by entrusting it to a competent contractor. The claimant died when the lift hit the bottom of the shaft.

Avoiding Liability
An occupier can try to limit or exclude liability by a notice or term in a contract under s2(1) 1957 Act. However, the UNFAIR CONTRACT TERMS ACT 1977 will strike it out if it is not reasonable. You see them every day in car parks, shops, cinemas and restaurants.

Defences
The defences are:

Volenti
Contributory Negligence
OCCUPIERS LIABILITY ACT 1984
The common law was hostile to trespassers until 1972 – British Rail v Herrington [1972].

The 1984 Act applies to persons OTHER THAN VISITORS, s1(1)(a) –

Trespassers (including burglars)
Persons entering land under an access agreement
Persons lawfully exercising a right of way

The duty owed is if the occupier:

knows of the danger (or has reasonable grounds to know it exists),
that such persons are on or may come to his premises,
and the risk is one against which he may reasonably be expected to offer some protection[1]

The duty is to take such care as is reasonable in the circumstances to see that he doesn’t suffer injury on the premises by reason of the danger concerned.

Tomlinson v Congleton BC [2003] – an eighteen-year-old youth, the claimant, went to a park owned by the defendant council in which a disused quarry had been turned into a lake. There were warning signs around the lake, but the claimant ignored these and dived into the lake, striking his head on an underwater obstacle and suffering severe injuries. The Court of Appeal, by a 2-1 majority found that the defendant’s were liable in damages under the 1984 Act, subject to a two-thirds deduction for the claimant’s contributory negligence. Although they had forbidden swimming in the lake, had placed warning signs, and had park rangers who occasionally gave oral warnings, they knew (and had known for some ten years) that these warnings and prohibitions were often ignored. They had not taken reasonable steps to ensure that unauthorised bathers (of whom they knew) did not suffer injury by reason of the dangers (of which also they knew).

The House of Lords reversed the decision as the risk was an obvious one to an adult.

Ratcliffe v McConnell [1998] – claimant dived into an empty swimming pool at night, severely injuring himself. He had climbed over the gates of the open-air pool, and it was closed for the winter. It was held that there was no liability – he was also volenti.

Between 1972 (British Rail v Herrington) and 1984 no adult trespasser succeeded in a claim. The rules on warnings and volenti explain why.

DEFECTIVE PREMISES
For the sake of completeness, s4 DEFECTIVE PREMISES ACT 1972 outlines the duty of care owed by a landlord to his tenant, lawful visitors, trespassers and people outside the premises.

The duty is applicable where the landlord knows of the defect, or ought reasonably to have known of it, to take reasonable care to see that those who might reasonably be affected by the defects are reasonably safe from personal injury or damage to property.

The Act also refers to builders in not building defective premises likely to cause harm or injury.
THE TORT OF NUISANCE
There are two types:

PRIVATE – a tort
PUBLIC – a crime, always. It is a tort by virtue of a common law rule that a person who suffers SPECIAL DAMAGE may bring an action in tort.

Private Nuisance
The unreasonable interference with another’s enjoyment of his property, e.g.

Neighbour disputes
Noisy parties
Bonfires
Late night noise

The tort also extends to indirect damage caused to the property or things on it.

Who Can Sue?
The claimant must have an interest in the land: Malone v Laskey [1907] – the wife of a tenant was injured by a cistern dislodged by vibrations caused by the defendant. The action failed as she had no interest in the land.

Hunter and Others v Canary Wharf Ltd and London Docklands Development Corporation [1997] – the House of Lords confirmed the position of Malone v Laskey.

What Conduct amounts to a Nuisance?

This is a balancing act between the defendant’s right to use his land as he wishes, and the claimant’s right to enjoy his land without interference. Any list is merely arbitrary, and in Hunter and Others v Canary Wharf Ltd and London Docklands Development Corporation [1997] it was held that interference with a television signal is not actionable in nuisance.

Private nuisance is the tort of:

unlawful interference with someone else’s use or enjoyment of his land,
or indirect damage to his land or to the things on it.

The claimant must prove:

The distinction between nuisances causing material damage to property and those causing personal discomfort was drawn in the leading case of St Helen’s Smelting Co v Tipping [1865] in which Tipping sued successfully when his trees and plants were damaged by fumes from a copper smelting works.

The House of Lords stated that if material damage, rather than personal discomfort, is suffered, the locality is of less significance. If the claimant moves to an industrial area, and finds that the emissions from the local factory kill his plants or damage the brickwork of his house, it will not generally be a defence for the defendant to say that the claimant should have expected this in such an area. A landowner has a right to enjoy his property free of physical damage. If, on the other hand, he moves to a busy area and complains that he cannot sleep as well as he could in the quiet countryside, the court will take locality into account.

The interference was indirect. Direct interference, for example by putting something on someone’s land, is trespass rather than nuisance, although there is some overlap.

Kelsen v Imperial Tobacco Co Ltd [1957] – a sign which projected eight inches into the air space above the claimants shop was held to constitute a trespass as well as a nuisance. Nuisance, rather than trespass, generally occurs when the defendant does something on his own property that affects the claimants property, such as creating a noise or fumes.

In deciding what is reasonable, the following factors are taken into account:

Character of the neighbourhood.
Abnormal sensitivity
The existence of malice
Duration of the nuisance
Usefulness of the defendant’s conduct
Fault

CHARACTER OF THE NEIGHBOURHOOD

St Helens Smelting Co v Tipping [1865] – the claimant bought an estate near to the defendant’s copper smelting works. Fumes damaged trees and crops. The defendant claimed he isn’t liable as he operated in an industrial area. The House of Lords rejected the assertion.

Sturges v Bridgman [1879] – for more than twenty years a confectioner had used industrial pestle and mortars. There was no problem until the claimant (a doctor) built an extension consulting room, adjacent to the defendant’s premises. Noise and vibration were then a nuisance. The claimant succeeded in his action as the area was largely doctor’s consulting rooms. “That which is a nuisance in Belgravia wouldn’t necessarily be so in Bermondsey”.

That makes it difficult for those who live in an industrial area to succeed.

ABNORMAL SENSITIVITY

If the damage is due more to the sensitivity of the claimant’s property than to the defendant’s conduct, no nuisance is committed.

Robinson v Kilvert [1889] – the claimant occupied the ground floor of the defendant’s premises, and used it to store brown paper. Heat caused by the defendant’s manufacturing process damaged the paper. The action failed as the damage was due more to the sensitivity of the paper than the defendant’s activities.

McKinnon Industries v Walker [1951] – sulphur dioxide damaged the Crown Court’s orchids, but the claimant succeeds because it would have damage any plants.

MALICE

Bad motive or malice by a defendant may make otherwise reasonable conduct, unreasonable and a nuisance.

Christie and Davey [1893] – the claimant and defendant lived in adjoining houses. The claimant gave music lessons in his house to the annoyance of the defendant. His response was to bang tin trays together and shout during the lessons. The claimant gained an injunction due to the malice of the defendant.

Hollywood Silver Fox Farm v Emmett [1936] – silver foxes will not mate if it is noisy, and make a hell of a row themselves when they do mate! The defendant arranged for guns to be fired on his own land, close to the claimant’s farm. Malice ensured that the claimant’s action succeeded.

However, if you are doing what you are entitled to do, you can be as malicious as you like:

Bradford Corporation v Pickles [1895] – the defendant obstructed water percolating through his land in a deliberate attempt to stop it reaching a reservoir belonging to the corporation, with a view to forcing them to buy his land. As the corporation had no right to the water, the malicious act didn’t make it a nuisance.

DURATION OF NUISANCE

The longer the interference continues the more likely it is to be unreasonable and vice versa. It is a common argument in building work cases; ‘one off’s’ won’t do as the act complained of must be continuous.

Bolton v Stone [1949] – the cricket ball that was hit out of the ground only six times in seventeen years.

USEFULNESS OF THE DEFENDANT’S CONDUCT – (PUBLIC UTILITY)

The defendant’s conduct is useful to such an extent as to outweigh the nuisance caused. Rail or road repairs, for instance.

Miller v Jackson [1977] – cricket balls frequently went into the claimant’s garden from an adjacent cricket club, despite the best endeavours of the club. The Court of Appeal held 2– 1 that a nuisance was committed, but refused an injunction by 2– 1 on the grounds of public utility. The utility of the club outweighed the claimant’s interest.

FAULT

It is not necessary to show negligence on the part of the defendant, otherwise the tort of nuisance would become redundant.

Consider a hosuing estate built next to a factory that has the latest state-of-the-art pollution control

Foul smells, alleged by the housing residents to be a nuisance and/or negligence.

Negligence

# Has the defendant taken all reasonable care?
# Balance interests of parties using the tests just discussed.
# New equipment, properly maintained?
# Question to ask is whether the defendant has acted reasonably, not whether he used all reasonable care.
# Action fails

If court finds that the defendant’s activity was unreasonable an injunction in nuisance could be granted.

Who can be Sued?

The creator of the nuisance
An occupier of land
A landlord – occasionally

Defences
PRESCRIPTION. In an action for private nuisance it is a defence to show that the nuisance has been actionable for twenty years and the claimant was aware.

Sturges v Bridgman [1879] – the doctors consulting room case on locality. Unable to claim prescription as the nuisance hadn’t lasted that long; the nuisance had not begun until the doctor had extended his waiting room, and that was in 1873.

STATUTORY AUTHORITY. You are allowed to commit the nuisance by virtue of an Act or Parliament, providing you aren’t negligent. For example, railways causing noise by smoke, noise and vibration.

Planning permission – these operate through delegated powers within a statutory framework. Sometimes these permissions are strategic in their character. This means that the planning permission can alter the character of a neighbourhood to such an extent that what would previously have been a public nuisance may not be so after the change of use.

Other Issues – Not Defences
COMING TO THE NUISANCE – “I was here first”. The claimant is aware of the nuisance when he moved to the area. Not relevant.

Sturges v Bridgman [1879] – consulting room again.

Miller v Jackson [1977] – the cricket ball in the garden case (Public Utility).

USEFULNESS – not a defence. It is a question of public utility as a defence, rather than a factor towards reasonableness.

Adams v Ursell [1913] – the defendant opens a fish and chip shop in a ‘posh’ part of the street. An application for an injunction was made on nuisance grounds. The defendant argued that it would cause hardship to his business and the ‘less well off’. The claim was rejected, usefulness is not a defence.

Remedies
INJUNCTION. An equitable remedy where damages is of no use. It stops the nuisance.
DAMAGES. Where it isn’t possible to grant an injunction. The claimant shows that his property value has been diminished as a result of the nuisance. It cannot be too remote.
ABATEMENT. It is a form of self help. The claimant is given permission to abate the nuisance, e.g. lop off a branch of a tree and enter the defendant’s land in order to do so. Rarely given

PUBLIC NUISANCE
There is no need for a claimant to have an interest in land. It is always a crime capable of being punished, e.g. breach of the CLEAN AIR ACT 1956. Obstructing the free passage of a highway is an excellent example. A definition comes from:

Attorney General v PYA Quarries [1957] – quarrying operations conducted in such a way that residents were affected by dust and vibration from explosions. The case provides a definition:

“a public nuisance is one which materially affects the reasonable comfort and convenience of the life of a class of Her Majesty’s subjects”.

That’s the definition, but in order to sue you must show that you have suffered SPECIAL DAMAGE, i.e. over and above that suffered by the rest of that class of persons.

Castle v St Augustine Links [1922] – the claimant was driving his car when he was struck by a golf ball from the 15th tee of the defendant’s golf course. Balls often went over the highway. The siting of the tee amounted to a nuisance. The class of persons affected are highway users, the claimant has suffered special damages and, therefore, the defendant is liable.

The latest case of any importance is Wandsworth LBC v Railtrack plc [2001] – droppings from uninvited feral pigeons, roosting under a railway bridge, that created a hazard over the footpath and to pedestrians constituted a public nuisance. The owner of the bridge who had the knowledge of the nuisance and the resources to abate it but failed to do so was liable in nuisance. Council taxpayers were not to foot the bill of cleaning the fouling even if the proliferation of pigeons might have been encouraged by some local residents.