Law of Torts: Rights of Gina and Samuel

This article discusses the rights of Gina and Samuel in terms of ownership and loss under the Law of Torts. It covers the elements of negligence, duty of care, breach of duty, and defenses. It also explores the concept of nuisance and trespass to land. The conclusion highlights the eligibility of Samuel to claim damages from Gina.

Running head: LAW OF TORTS
Law of Torts
Name of the Student
Name of the University
Author Note

1LAW OF TORTS
Question 1
Issue
The issue is to determine the rights of Gina in terms of her ownership on her land and
the rights of Samuel pertaining to the loss that he have suffered.
Rule
Tort refers to certain type of civil wrongs that are committed by an individual against
another. Under law of tort, individuals can claim damages against a wrong resulting to injury or
loss, committed by another individual. A tort is committed by a ‘tortfeasor’, which results to
injury or loss to another. Law of torts is distinguished from criminal and contractual law. A
criminal act is a wrong committed not only against an individual, but also against the society,
and hence it is dealt by the criminal court. While, contractual cases are dealt by civil courts
where the contractual rights and duties between contractual parties have been challenged.
However, the distinguishing line between law of tort, contract law and criminal law are
overlooked for they merge with each other sometimes. For example, a violent offence committed
against a person due to a negligent act would amount to assault, which would be prosecuted in a
criminal court, but the claimant would claim the damages through civil proceeding, in a civil
court. The claimant can sue for the losses that he has suffered due to someone else’s tortious
acts. The claimant must prove that he has suffered a substantial loss, which was foreseeable by
the tortfeasor.

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Negligence is the most common form of tort, which makes a claimant eligible to sue the
tortfeasor. In the case of Donoghue v Stevenson [1932] AC 562, Lord Atkin laid down the
following essential elements that need to be satisfied for amounting the tort of negligence:
 There was a duty of care of the tortfeasor towards the claimant;
 The duty was breached by the tortfeasor;
 The breach of duty amounted to injury or loss; and
 The injury was not unforeseeable
Duty of care
Duty of care refers to the responsibility one has towards another, breach of which gives
rise to tortious liability of compensating the claimant who have suffered loss or injury (Luntz
2017). Therefore, it is important for the claimant to prove the fact that the tortfeasor owed him a
duty of care and such duty has been breached. In the case of Donoghue v Stevenson [1932] AC
562, Lord Atkin held that one must adopt reasonable care to avoid any wrongful act or omission,
which was otherwise reasonably easy to foresee, which has the potential to hurt or injure ones
neighbour. The question was raised as to identify one’s neighbour and it was argued by Lord
Atkin that anyone who lives in close vicinity and could be directly affected by one’s wrongful
actor omission. The ‘neighbour test’ was put forward to establish and confirm the duty of care of
a person towards his neighbour, which includes the following: Foreseeability of injury and the
relationship of closeness or proximity between the claimant and tortfeasor.
In the case of Topp v London Country Bus [1993] 1 WLR 976 it was held that the bus
company would not be held liable for breaching a duty of care as the duty was breached by a
third party. In addition, it was not foreseeable that thieves would steal the bus and that it would
hit and run a woman off her bicycle. This gives a clear view of the concept of foreseeability of

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injury or loss inflicted upon a claimant by the tortfeasor. While in the case of Bourhill v Young
[1943] AC 92 it was held that the defendant or the tortfeasor would not be held responsible for
any harm inflicted upon the claimant for the injury was not foreseeable nor was the defendant in
proximity of the location of the accident. Therefore, no duty of care was established.
While in the case of Caparo Industries Plc v Dickman [1990] 2 AC 605 the court added
another essential along with the factor of foreseeability and proximity. The element of
reasonableness was added which states that it must be fair and reasonable for the imposition of a
duty of care on the defendant.
Breach of duty
In the case of Vaughan v Menlove (1837) 3 Bing NC 467, the defendant was held for
breaching his duty of care towards his neighbour for he did not take care of the haystack which
caught fire due to poor ventilation. The court held that the defendant was at fault for gross
negligence for he was responsible for proceeding with reasonable caution, as a man of ordinary
prudence would have done as per the circumstance.
The concept of Negligence and Absolute Liability as evolved under Ryland v Fletcher
In the case of Ryland v Fletcher [1868] UKHL 1 a new concept of liability was evolved
which is known as strict liability where the defendant was held liable even in the absence of a
negligent act on his part. The theory of strict liability exclaimed that a person would be held
strictly liable who is in charge of certain dangerous or non-natural thing, which has the potential
to harm others if it escapes the confinement, even if the wrongful act is carried out by the act or
omission of a third party. In this case, the defendant constructed a reservoir on his land by
employing an independent contractor. The reservoir flooded the neighbouring mineshaft of the
claimant giving effect to a pure economic loss. The Court of Exchequer Chamber held the

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defendant liable and the House of Lords confirmed the decision. Justice Blackburn let down the
following essentials in order to claim damages under the principle of strict liability by claimant:
 The defendant brought something dangerous or harmful on to his land;
 The defendant indulged into a non natural use office land;
 The dangerous of harmful thing is likely to cause injury if it escaped; and
 The dangerous thing escaped and caused injury or damage.
 The injury was foreseeable.
The decision in this case clearly mentioned that anything that grows naturally on a land is
to be differentiated from those that are being accumulated or gathered artificially by the
defendant. In this case, the defendant had built a reservoir that has the capacity to accumulate a
huge quantity of water which if escaped has the potential to destruct the neighbouring or
adjoining area. Additionally it has been noted that the thing that is accumulated must serve a
purpose to defendant and it must be artificially brought in the land, along with being hazardous
or mischievous which is likely to cause damage if escapes from confinement. The accumulated
thing if escapes must result to damage or destruction of the adjoining area resulting to injury or
loss (Twerski, Henderson Jr and Wendel 2017). The hazardous thing must give effect to an
injury, which is to be foreseeable by the defendant. This is known as the rule of remoteness of
damage which pose formed in the case of Cambridge Water v. Eastern Counties Leather (1994)
2 AC 264.
However, in certain circumstances that defendant may plead innocent on the basis of
certain grounds of differences. It is the right of the defendant to cite the grounds of defense as a
shield against being wrongly prosecuted for negligence and strict liability.

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 Act of stranger
The claimant cannot held the defendant liable for the wrongful act or omission of
a stranger.
 Act of God
An act of God represents an event that affects people or property, which cannot be
foreseen in advance. In Nichols v. Marsland (1876) 2 ExD 1 the adjoining land was
flooded and damaged due to the exceptionally heavy rainfall which overflow to the
nearby artificial leg lakes and water bodies and hence the defendant was not held liable.
 Wrongful act or omission by a third party
The case of Ryland v Fletcher [1868] UKHL 1 is the best example for the defense
of wrongful act by a third party. The defendant would not be held liable for a wrongful
act or omission by a third party who was an independent contractor in this particular case.
 Consent
It will be a defense for the defendant that the claimant himself agreed or
consented to be in proximity with the hazardous a dangerous thing and therefore cannot
held the defendant liable for any subsequent injury. Such consent maybe express or
implied.
 Common benefit
The claimant cannot held defendant liable for the injury if they had agreed upon
exploring the hazardous thing due to common benefit. It is similar and closely related to
the difference of consent.
 Statutory authority

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In certain case, a statute may ask a person to indulge in a particular activity,
which may prove to be dangerous or hazardous to him. In such case, the aggrieved party
cannot claim damages against the statutory authority.
 Contributory negligence
The claimant would not be able to hold the defendant liable for the injury if he
himself has contributed to the negligence that gave effect to the breach of duty of care
where the claimant is himself at fault and has contributed to his own injury he cannot
make de defendant liable for the damage.
In addition to negligence, the act of nuisance is another area of law of tort, which is
majorly divided into private and public nuisance. In case of public to loosen the defendant action
affects the convenience and comfort of the public at large while as for private nuisance the act or
omission of the defendant causes unreasonable interference disturbance in respect to the
claimant’s enjoyment or use of his land. The parties concerned in a private nuisance is generally
within close proximity of each other as such proximity affects the claimant, giving rise to an
injury (Levine 2016). A person who is committing nuisance towards another would be held
responsible such tort and would be liable to pay damages. In Kennaway v Thompson [1981] QB
88, the claimant brought litigation against the defendant accusing him for nuisance for creating
noise and disturbance. The court awarded damages to the claimant, however did not grant
injunction.
Application

7LAW OF TORTS
In the given case, Gina could be held liable for committing nuisance towards her
neighbour Samuel as her chicken and cockerel crows throughout the day, which disturbs Samuel.
This is a clear instance of a tort of nuisance where Gina is creating hindrance for Samuel to enjoy
in his property to the fullest.
In addition, Gina would be held liable for negligence and breach of duty for the pesticides
that she had stacked against the boundary fence leaked and killed Samuel’s prize grown roses
that he was growing for the village fete. As a neighbour living in close proximity, Gina was
under the duty of care to take precaution as to the stack of pesticide and made sure that they do
not leak into her neighbour’s property. However, she failed to carry out her duty of care,
amounting to pure economic loss for Samuel.
Gina, on the other hand, would have been eligible to cite appropriate defenses for
defending her act of negligence and breach of duty of care if there were any of the above-
mentioned factors of defense involved. Nonetheless, in this case, Gina would not be able to cite
any defense for her act of negligence.
Conclusion
Therefore, to conclude, Samuel would be eligible to claim damages from Gina for her
negligence and breach of duty of care. Additionally, he would also be liable to claim damages for
the nuisance that he suffers due to daylong crowing of Gina’s cockerel. However, Gina would
not be able to defend herself for her act of negligence or nuisance.

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Question 2
Issue
The issue is to determine the rights of Claire pertaining to the accident she met at
ShineBright Limited where she broke her right leg.
Rule
Trespass is another Tortious act that is dealt under the law of tort. Trespass is broadly
divided into three categories: Trespass to person, Trespass to goods and Trespass to land.
Trespass to a person refers to direct and intentional application of force by one person upon
another. It includes assault, battery or false imprisonment. All of these involves direct and
intentional act, as indirect and unintentional act falls under the tort of negligence. For the paper,
Trespass to land is to be discussed and highlighted. Trespass to land refers to the unreasonable
interference with a land, which is under the exclusive and immediate possession of the claimant
(LII / Legal Information Institute 2019). It is a civil wrong as well as a crime under the Criminal
Justice and Public Order Act 1994. It is actionable per se, as it is not necessary to prove the
injury was suffered for making a claim for damages. It is evident that most cases of trespass to
land is intentional, while there are cases where the trespass was unintentional and carried out in
negligence. However, the court have held that the tortfeasor of an accidental trespass is to incur
liability as well, in the case of League Against Cruel Sports v Scott [1985] 2 All ER 489.

9LAW OF TORTS
The main element of the tort of trespass is interference. Interference must be both direct
and intentional, as indirect and unintentional is covered by the tort of nuisance or negligence.
Interference includes physical entry to a land or property of the claimant, without the knowledge
of the owner or possessor of the property or without his authorization. If a person continues to be
in a property or land even after his right to be there has expired, it would amount to trespass.
A child can also be considered to be trespasser when he or she enters into a property
without the owner’s permission or authorization. Children are incapable of understanding the
risk of their actions and hence get into trouble, sometimes physical injury due to trespassing into
another’s property. Under the Occupier’s Liability Act 1984, the owner or occupier of the
property has the responsibility to make sure that the property is safe even if a child trespasses, or
he must ensure that a child cannot trespass into the property at any circumstance. Children do not
understand warning signs or the significance behind fences on a property. A tiny gap in the
barrier would amuse and allure them to explore the unknown place, as it is easier for them to
make way through the small gap. It is evident that the occupier failed to take necessary security
measures to prevent people children from trespassing if it is reasonable to believe that the risk of
the trespass on the dangerous site is high.
The Occupier’s Liability Act 1984 determines the fact whether a child could make a
claim pertaining to an injury that he or she has contracted by trespassing to an unauthorized site.
The Occupier’s Liability Act 1984 was introduced to protect children trespassers, who were not
covered under the Occupier’s Liability Act 1957. The Act of 1984 states that the trespasser, a
child or an adult is owed a duty of care by the occupier or the owner of the property . The
owner of the Occupier was liable to ensure some kind of protection to those who might trespass

10LAW OF TORTS
into the property without the knowledge of the occupier. In that context, protection includes the
necessary precautionary steps to warn regarding the potential dangers of the property, which
might reduce the risks of accident or injury. It is instructed that the warning signs must be
presented in such a way that it is comprehensive to the children who are unable to read.
However, it is argued that these warning signs sometimes acts an allurement instead of acting as
a deterrence to the children to indulge in trespass. The occupier in such case would be held liable
for breaching his duty of care for ensuring the safety of the trespasser.
In Hughes v. Star Homes, Inc. 379 So. 2d 301 (1980), the court outlined the following
essential elements that a claimant must prove in order to claim damages for an injury incurred by
a child for trespassing:
 The occupier should be well aware of the dangerous situation of his property;
 The occupier should have reasonably known that children often gather around the
property;
 It is unlikely that children have the intellect to measure the adverse or dangerous
condition of the property; and
 The occupier could have rectified the adverse condition of the property by way of
minimal renovation.
The court has held that in such circumstances, a claimant would be able to demand
damages for the injury that his child has suffered due to trespass as the occupier is under the
obligation to ensure a good condition of the premise for any potential trespass. However, the
court might consider the defendant’s plea of defense that he took all necessary care to prevent a

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child from entering the premise, which was under renovation for ensuring security for
trespassers.
Application
In the given case, ShineBright Limited could be held liable for not ensuring safety for
trespassing children as Claire was not being able to under the danger warning sign and went
ahead into the building. She did not even understand the purpose of a barbed wire fence that was
surrounding the premise. In the process of trespassing, Claire broke her right leg by falling down
the staircase of the newly built basement of the premise, which amounts to physical injury. The
court would, in this case would attract the provisions of the Occupier’s Liability Act 1984 and
would held that ShineBright was under the obligation to ensure that it would be impossible for
children to enter into the premise or even if they enter, they would not be able to make use of any
dangerous equipment. ShineBright would not have any appropriate defense to cite in this matter.
Conclusion
Therefore, to conclude, Claire would be liable to claim damages even when she had
trespassed the premise under renovation, for the occupier had a duty of care for ensuring safety
of the trespassers.

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References
Bourhill v Young [1943] AC 92
Caparo Industries Plc v Dickman [1990] 2 AC 605
Criminal Justice and Public Order Act 1994
Donoghue v Stevenson [1932] AC 562
Epstein, R.A. and Sharkey, C.M., 2016. Cases and materials on torts. Wolters Kluwer Law &
Business.
Hughes v. Star Homes, Inc. 379 So. 2d 301 (1980)
Kennaway v Thompson [1981] QB 88
League Against Cruel Sports v Scott [1985] 2 All ER 489
Levine, L.C., Vetri, D., Vogel, J. and Gassama, I.J., 2016. Tort law and practice. Carolina
Academic Press.
LII / Legal Information Institute. (2019). Trespass. [online] Available at:
https://www.law.cornell.edu/wex/trespass [Accessed 6 Jan. 2019].
Luntz, H., Hambly, D., Burns, K., Dietrich, J., Foster, N., Grant, G. and Harder, S., 2017. Torts:
cases and commentary. LexisNexis Butterworths.
Nichols v. Marsland (1876) 2 ExD 1
Occupier’s Liability Act 1984
Rylands v Fletcher [1868] UKHL 1
Topp v London Country Bus [1993] 1 WLR 976
Twerski, A.D., Henderson Jr, J.A. and Wendel, W.B., 2017. Torts: Cases and Materials. Wolters
Kluwer Law & Business.

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Vaughan v Menlove (1837) 3 Bing NC 467