Negligence, Occupiers Liability, and Tort of Nuisance - Essay Example

NEGLIGENCE, OCCUPIER’S LIABLITY, AND TORT OF NUISANCE Introduction The essay is regarding respective rights and liabilities of parties in the circumstances described in the instructions. The question whether the provisions of common law strike fair balance between the rights of parties will be studied in the light of relevant common law and precedent. This paper will determine the same in the law of torts relating to nuisance, occupier’s liability and trespass upon property. Definitions of Terms in Torts Law Tort: Tort is a species of damage caused. It does not arise out of any contract but out of an obligation on the part of the defendant to prevent damage to the claimant. It may be an act of omission or commission. Tort may arise out of commission as when the defendant makes a noise by running of his mill. It may arise out of omission where the defendant does not secure his cow which then runs on the neighbour’s garden and damages his precious plantation. Occupier of premises: Usually the occupier of the premises is the owner thereof but sometimes the tenant may be the occupier, and sometimes the person who is given the charge of carrying out repairs when the landlord is living elsewhere. Trespass: Trespass is the violation of property of the claimant by the defendant. It may be caused by entering into a property which is fenced with a warning to keep out. In cases where the defendant strays on to the property because there is no other way to reach his destination the trespass id not actionable. Nuisance: Nuisance is the violation of the right to enjoyment of property, for the purposes of this paper, nuisance should be taken to mean that the act or omission is causing disturbance in the claimant’s enjoyment of the property which includes rights that arise of the land. Duty of care of Occupier of premises: The duty of care by occupiers in this case relate to his duty towards trespassers which is governed by the Occupier’s Liability Act 1984. Trespasser’s rights and liabilities: The trespasser is guilty of trespass and liable in torts for that intrusion in another’s property when he has not entered in to the property either by invitation or authority or otherwise when he has no duty to enter the premises. Potential Claims The circumstances give rise to multiple claims for all three parties against each other. The trespass and subsequent damage to the chicken run and loss of business caused due to the chicken straying gives rise to cause of action for Colin against Toby. Colin also has a remedy in criminal law against Toby. Under the Occupier Liability Act 1984, Toby has a claim against Colin for the physical damage suffered by him. Sue has a right of action against Colin for the nuisance caused to her due to the increased noise caused by the straying chicken. The Status of Parties, Respective Rights& Liabilities As occupier of the premises Colin is liable in common law for keeping his premises in such a condition that it is not hazardous for others. On the other hand his liability to a particular person will be determined by the status of that person. If the person is invited guest or a trespasser upon Colin’s property or a passerby will determine Colin’s liability towards him. Colin however has multiple defences, including the motive of Toby to enter his premises. Toby is a trespasser on Colin’s land as he has come uninvited. Further he is a thief, and Colin owes no duty of care to him. As the occupier, Colin was entitled to leave the pile of soil and stones in his premises blocking the pathway. As his premises are surrounded by fencing Toby could have entered the property only by trespass. Colin does not owe Toby a duty to care hence Toby will not be entitled to claim damages for tort of negligence by Colin. Colin will be protected from any action by the defence found in the maxim Ex turpi causa non oritur actio which means that no cause of action arises from an dishonourable act. On the contrary, Toby is liable for damages to Colin for the damage to the chicken run and also for the subsequent losses suffered by him. Toby’s fall has ruined the chicken run which Colin is unable to repair for want of funds. Toby is liable to pay for the damages to the chicken run as well as damages for loss arising out of the damage to the chicken run. Sue is a neighbor and Colin owes her duty of care to keep his premises in good repair and prevent any nuisance being caused to her due to the breach of this duty. But Colin has defence to any action brought by Sue. He can defend the suit on the ground that he was not the cause of the nuisance. The law rarely allows damages arising out of omission of a particular act of the defendant, especially when the act is done by a third party. Here, the nuisance caused by the chickens running around on the property and causing nuisance to Sue could not have been reasonably foreseen by Colin. Does the Law Strike a Balance between Respective Rights and Liabilities of Parties? The law is unfair only to Sue, who has a legitimate claim against Colin for the nuisance caused by his chicken making undue noise. But Colin has defence in the fact that it was not his act that gave rise to the nuisance. Toby has a claim against Colin which is rightly taken away because he had entered Colin’s property with an intention to steal. Of all the three parties, Colin is most helped by law and rightly so. His loss of the chicken run has been the direct consequence of Toby’s trespass on his property and he has a right to sue Toby for damages. Sue is the party most aggrieved by the position of law which makes an act of the defendant liable in tort, but not usually an omission. However, she can have the consolation that even otherwise Colin does not have the capacity to reconstruct the chicken run which has likely damaged his means of livelihood. Read More