Assignment on The English Tort Law

Added on - 21 Apr 2020

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qwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnProperty LawCase study(Student Details: )
CASE STUDY2Question 1IssueWhether a case of under tort law can be brought by Samuel against Gina for the loss of his roses,or not? Whether a case of nuisance can be brought by Samuel against Gina for the disturbanceowing to the cockerel of crows, or not?RuleTort is deemed as a civil wrong done, where a party is harmed due to actions of others(Turner,2013). The English tort law provides that there are two types of nuisance claims which can bemade and these include the private and the public nuisance. Public nuisance refers to the actionsin which damage is suffered by the claimant, which is over and above the damages which thedamages which are suffered in general by public (Best, Barnes and Kahn-Fogel, 2014). On theother hand, private nuisance refers to the rights of an occupier being protected when there is anunreasonable interference with the enjoyment or usage of their land. Typically, the parties incases of private nuisance are neighbours and in order to give the verdict, a balance has to beattained by the courts, in between the competing rights of the land owner for using their land asthey choose to do, along with the right of the neighbour to enjoy his land, without anyinterference (Ward, 2010).When a case of nuisance is aptly shown before the court, the court awards remedies to theaggrieved party, which can be in form of injunction, compensation and abatement. A keyrequirement for making a case of negligence is to show that the right of using the land has been
CASE STUDY3interfered with (Harpwood, 2009).Christie v Davey(1893) 1 Ch 316 was a case in which theplaintiff was a music teacher, and she used to give lessons at her home in which her familyenjoyed to play the music. This place was a semi-detached home which adjoined the property ofthe defendant (Strong and Williams, 2011). On different occasions the defendant made acomplaint of noise but the same were not paid heed too. This resulted in the defendantscreaming, shouting, banging the walls and beating trays. This led to the court upholding that thedefendant’s action had been motivated with malice which made his actions nuisance. Thisresulted in the plaintiff being granted an injunction order (Steele, 2017).McKinnon Industries v Walker[1951] WN 401 was a case in which steel and iron products weremade by the defendant from the claimant’s property which was located six hundred feet away.The plaintiff was a commercial florist and had a nursery and a dwelling house. As a part of hisbusiness, he used to grow orchids and these were famous for their sensitivity. The plaintiff madea claim in the court for the smuts and the noxious fumes which got deposited over his shrubs,hedges, flowers and trees from the work of defendant and this resulted in his flowers dying. Thecourt upheld unlawful nuisance on part of the defendant and damages were allowed to berecovered (E-Law Resources, 2017a).When there is an absence of negligent conduct on part of the defendant, a particular kind ofnuisance is upheld and this is a restrictive approach based on the case ofRylands v Fletcher[1868] UKHL 1. In this case, the defendant was the owner of a mill who had constructed areservoir on his land. The placement of this reservoir was over a disused mine. The water fromthis reservoir was filtered through the disused mine shafts and this was spread over the workingmine which was owned by the claimant owing to extensive damage. The court held that thedefendants were liable in a strict manner owing to the damages caused owing to the non-natural
CASE STUDY4usage of land (Stephenson, 2012). Through this case, certain requirements were put forward forupholding a claim on the basis of this case and included in these requirements were theaccumulation of the land of the defendant; a thing is likely to do mischief in case it escapes; therehas to be an escape; there has to be a non-natural usage of land; and the damages should not betoo remote (Statsky, 2011).ApplicationIn the given case study, a case of nuisance can be made by Samuel against Gina. This wouldstem from the tort of nuisance. In the first instance, Gina bought a property where she broughtchickens and cockerel on the land to roam freely. The purpose of this property was thus to allowthe livestock to roam in it. However, Gina brought a range of different pesticides and chemicalswhich were stacked up on the boundary, which resulted in her boundary being separated fromher neighbour Samuel. There was a leakage from these pesticides through the boundary fence,resulting in the damage of Samuel’s grown roses. He was supposed to sell this next week at thelocal village fete. In this case, Samuel can use the cases ofRylands v FletcherandMcKinnonIndustries v Walkerto claim damages.As was held inMcKinnon Industries v Walker,the fumes from the site of the defendant haddamaged the orchids of the plaintiff. And in this case, the pesticides from the site of Gina haddamaged the roses of Samuel. And so, on the basis of this case, Samuel can make a case ofnuisance against Gina. This would allow Samuel to claim damages as compensation for the losscaused to him.A more apt case here however would be to applyRylands v Fletcherin order to claim damagesfor the loss sustained. This can be established through the requirements given in order to make a
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