Occupiers' Liability in Tort Law

This assignment delves into the complex area of occupiers' liability within tort law. Students are tasked with examining numerous landmark cases, such as *Wagon Mound (No. 1)*, *Kennaway v Thompson*, and *Rogers v Whitaker*, to understand how courts have interpreted and applied the principles governing landowners' duty of care to visitors. The assignment requires a thorough analysis of these cases, highlighting key legal concepts like invitation, license, trespass, and the extent of a landowner's liability for harm caused on their property. Additionally, students are expected to consider relevant legislation and apply it to specific factual scenarios.

university college of estate management

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Tort can be defined as a civil wrong done, where the actions of one prove costly for another
person. There are a number of different torts in the nation, including negligence, nuisance,
defamation and the like. The tort law helps a person in determining the possibility for recovering
damages for the injury sustained by them, from another person (Statsky, 2011). Negligence can
be best summed up as the breach of duty of care, which person P owed to person Q. When the
actions of person P have the capability of resulting in a harm or injury to the part Q, it is the duty
of P to deploy the case so that such foreseeable harm or loss is not caused. When this duty is not
fulfilled, and an injury is caused to party Q that is the case when negligence is established
(Greene, 2013). In the following parts, the different aspects of different torts have been discussed
in context of the case study given with regards to Susan and Austin Homes Ltd.
In the first instance, the key issue relates to the possible legal action which can be taken by Susan
against Austin Homes Ltd with regards to the vibrations and noise.
Under the English law, there are two kinds of nuisance, i.e., the public and the private nuisance.
Public nuisance is deemed as a crime and remains actionable under the tort law, where a
particular damage is suffered by the claimant over and above the damages which are suffered by
the public in general (Best, Barnes and Kahn-Fogel, 2014). Private nuisance on the other hand
details with protection of the rights of an occupier with regards to the unreasonable interference
with the use or enjoyment of his land. Usually in private nuisances the parties are neighbours and
a balance is exercised by the court between the competing rights of the owner of the land to
make use of the land owned by him in the manner of their choice and the right of a neighbour to
not have the enjoyment or use of land interfered with (Ward, 2010).

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When a case of nuisance is established, the aggrieved party can apply for remedies in form of
compensation, abatement and injunctions. For establishing a case of nuisance, there is a need to
show that there had indeed been an interference with the right to use the land (Harpwood, 2009).
In the case of Christie v Davey (1893) 1 Ch 316, the claimant had been a music teacher and gave
private lessons at her home where her family enjoyed playing music. The claimant was living in
a semi-detached house which was adjoining to the property of the defendant. A complaint of
noise was made by the defendant on different occasions, which was not given any due
consideration and he started shouting, beating trays and banging on walls. It was held by the
court that the actions of defendant were motivated with malice and thus constituted as nuisance.
And so, the claimant was able to get a restrain on his actions through an injunction order.
In the case of Kennaway v Thompson [1981] QB 88, the defendant had been a member who had
been acting on behalf of a club, i.e., the Cotswolr Motor Boat Racing Club, which used to carry
out the racing of motor boats. The water sports included this motor boat racing and had been
carried out in the waters of the club since the initial periods of 1960s. In 1972, the claimant
shifted in the house which had been constructed on the land which she had got from her father
and this house was located exactly 390 yards away from the starting line of these motor boat
races. With the passage of time, the occurrence of such races was raised and the waters of the
club were used very often as a venue for international races, and for the national races as well.
A legal action was raised by the claimant against the club for nuisance owing to the disturbances
she experienced due to high noise. Her claim was successful and she was awarded damages.
Though, the injunction order sought out by the claimant was not upheld by the court based on
Miller v Jackson [1977] 3 WLR 20, where owing to the high walls built by the club, the
injunction order was not granted to the claimant. And so, the claimant appealed in Court of

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Appeal. This appeal was allowed by the court on the basis that an injunction could be granted in
exceptional situations, which were approved in this case, based on the case of Shelfer v City of
London Electric Lighting Co (1895) 1 Ch 287.
In the given case study, Susan had purchased the house from Alison, who had purchased the
house from Austin Homes Ltd. While Susan was living in the house she purchased, the
construction being conducted by Austin Homes Ltd created a lot of noise and vibration due to the
delivery lories at the site on daily basis. In this case, Susan had the right of enjoying her property
and had the right to enjoy it peacefully, without being interfered. Christie v Davey establishes
that a case of nuisance can be made where the noise disturbs the property owner. This can further
be clarified with the help of case of Kennaway v Thompson, and so, for the disturbance caused to
Susan owing to the voices and vibrations, which disturbed her and interfered with her right to
enjoy her property, she can make a claim of nuisance against Austin Homes Ltd. As a remedy,
she can opt for compensation for the constant disturbance and infringement of her right. Apart
from this, she can also apply for an injunction order, as this is an exceptional case. On the basis
of Shelfer v City of London Electric Lighting, mere awarding of damages would not be sufficient
and there is a need to grant injunction as otherwise Austin Homes Ltd would continue their
construction which would continue these voices and vibrations. Hence, it is necessary for Susan
to be granted injunction against Austin Homes Ltd so that Austin Homes Ltd can be stopped
from infringing the right of Susan to enjoy her personal property.
Hence, for the first claim, the legal action taken by Susan against Austin Homes Ltd with regards
to the vibrations and noise under the tort of nuisance would enable her to get damages and
injunction order passed against Austin Homes Ltd.

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The second issue in this case relates to the possible legal action which can be taken by Susan
against Austin Homes Ltd with regards to crane which is used to unload materials swings over
her garden.
In order to make a case of nuisance, there is a need to show that there had been unlawful
interference. The private nuisance requires an unreasonable use of land by the defendant as a
result of which the enjoyment of land of claimant is not permitted to the claimant (Stephenson,
2012). In London Borough of Southwark v Mills, Baxter v LB Camden [1999] 3 WLR 939, Mills
& Baxter were the tenants of the property owned by the defendants. The complaints were related
to the absence of sound proofing in the flats as a result of which, the daily activities of the
neighbours could be heard by them. And so, they brought an action against the Council for
nuisance. The court held that there was no case of nuisance here. This was because nuisance was
based on concept of reasonable user. The use of the flats had been done in a reasonable manner
and the claimants and not raised an issue on the noise made by them. Hence, the council was not
liable for nuisance.
In McKinnon Industries v Walker [1951] WN 401, the defendant made iron and steel products
from the property of the claimant located 600 feet away. The claimant was a commercial florist
who had a dwelling house and nursery. He used to grow orchids as a part of his business, which
was known for their particular sensitivity. A claim was brought in the court as the noxious fumes
and smuts from the work of defendant had deposited over flowers, hedges, trees and shrubs
resulting in their demise. The court held that this was an unlawful nuisance and the claimant was
allowed to recover damages.

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In the given case study, the chances of Susan successfully making a case of nuisance against
Austin Homes Ltd are quite vague. The reason for this is that the claim here has been made for a
crane which is used to unload the material of Austin Homes Ltd and which swings over the
garden of Susan. For a case of nuisance, there is a need to show that the enjoyment of property is
threatened somehow. Here, a swinging crane cannot be shown to infringe her right to enjoy the
property as the garden is not infringed in physical terms. There is no sound or vibration from the
crane which could disturb her and it is just the sight of swinging crane which disturbs her. There
is no unlawful interference which could substantiate her claims. The crane was being used in a
reasonable manner based on London Borough of Southwark v Mills, Baxter v LB Camden and
there was nothing to show that Susan’s rights were being infringed. Also, there was nothing
physically infringing her garden, nor were there any fumes or gases which came out of the crane
which could damage her garden on the basis of McKinnon Industries v Walker. This would mean
that there is no reasonable base to make a claim of nuisance against Austin Homes Ltd.
Hence, in this instance, the legal action taken by Susan against Austin Homes Ltd with regards to
the crane which is used to unload materials swinging over her garden under the tort of nuisance
would not enable her to get damages and injunction order passed against Austin Homes Ltd.
The next issue in this case is related to the unsecured fencing which has allowed access to the
children using the play area. In this instance, whether Austin Homes Ltd can be made liable for
the injuries which are suffered by the children while they play on the site of the company, or not?
Another crucial concept under the tort law is the occupier’s liability. The occupier’s liability
refers to the duty which is owed by the owners of land for the ones who come to their land.
When a duty is imposed over the owners of the land, it can go beyond the simple land ownership.

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For the occupier’s liability it is not compulsory to have physical occupation. It differs from
negligence as there is no need of establishing a breach of duty of care resulting in damages. For
occupier’s liability, the requirement is to show that there was remoteness as is present under the
negligence claims. Basically under this principle, the liability is raised by the property owners
towards the person who visit or trespass their property.
The Occupiers' Liability Act 1957 is applicable with regards to the occupier’s liability. Under
section 1(2) of this act, the liability is raised for the land owner towards the visitor who is
permitted or invited to enter their premises. A duty of care is also imposed through this act,
where the occupier has to consider all the cases in a reasonable manner where the visitor could
be hurt in order to ensure their safety. In this regard, six factors are to be considered, (i) the
magnitude of risk as perceived by a prudent or rationale occupier; (ii) degree of occurrence or
probability; (iii) inconvenience, expense and difficult in taking precautions; (iv) magnitude of
harm being obvious; (v) kind of occupier; and (vi) degree of skill or knowledge of the entrant.
Section 2(3)(a) of this act provides that there is a need to take special care for the children as
they are less careful than the adults (E-Law Resources, 2017). This means that a higher standard
of care has to be applied by the occupier upon the children visiting their premises.
The act of The Occupiers' Liability Act 1984 is applicable on the person other than visitors. And
in this regard, the definition of trespasser was provided by Lord Dunedin in Robert Addie & Sons
(Colliery) Ltd v. Dumbreck [1929] AC 358 as a person who goes in the land without any
permission and the presence of such person is not known to the occupier. The liability for
occupier is still raised for such trespasser particularly on the basis of age of trespasser.

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In the given case study, it was the children who were trespassing on the land of Austin Homes
Ltd due to there being a lack of properly secured fencing between the second and third phases
and this area was being used as a play area. If the children are injured while playing on site,
Austin Homes Ltd would be liable based on occupier’s liability. This is because section 2(3)(a)
of Occupiers' Liability Act 1957 requires care to be taken for chidden. And similarly, care has to
be taken by the occupier on the basis of Occupiers' Liability Act 1984 based on the age of
trespasser. Since the unsecured fencing was the fault of Austin Homes Ltd, they had to take care
of anyone who trespassed from their owing to higher chances of such occurrence. And as a result
of the situations revolving around this case, Austin Homes Ltd would be liable if the children are
injured.
Hence, Austin Homes Ltd can be made liable for the injuries which are suffered by the children
while they play on the site of the company.
The last issue of this case relates to the legal liability of Austin Homes Ltd towards Susan with
regards to the roof.
As has been explained in the introductory segment, negligence is the contravention of the
obligation of care (Turner, 2013). For making a successful claim of negligence, there is a need
for the claimant to show before the court there is a need to show that a duty of care had been
owed by the defendant to the plaintiff, that there had been a breach of this duty of care, that the
breach of duty resulted in damages for the plaintiff; and lastly, that the damages were not remote
(Latimer, 2012). In the case of Donoghue v Stevenson [1932] UKHL 100, it was held by the
court that the manufacturer owed a duty of care towards the consumer, even when the
contaminated ginger beer bottle had been purchased by the friend of the consumer. This was due

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to the proximity between a manufacturer and a consumer, and due to the reasonable
foreseeability of a dead snail found inside the bottle injuring the consumer.
The first requirement is of showing that a duty of care had been owed (Lunney and Oliphant,
2013). In this regard, the case of Caparo Industries pIc v Dickman [1990] 2 AC 605 proves to be
of help as this case presented a threefold test for establishing duty of care. In this case, where
there is a foreseeability of loss, proximity between parties, and necessary ingredients to show
that there was situation giving rise to duty of care, and that if the penalties are imposed, they
would be just and fair, than the law would impose a duty of care on the party.
The next step is to show that the duty of care had been breached. Paris v Stepney Borough
Council [1951] AC 367 is a leading case in this regard, where the court held that a breach of duty
had taken place when the defendant failed in providing the safety gear to the plaintiff for
performing his duties, even when the defendant knew that the plaintiff was already blind in one
eye. The other requirements of making a case of negligence includes reasonable foreseeability,
damage or loss, and the loss being substantial in nature, as the remoteness of injury can result in
remedies not being awarded.
A key aspect which has to be considered here is the standard of care which has to be upheld by
the professionals as was held in the case of Rogers v Whitaker (1992) 175 CLR 479. In this case,
the respondent was already nearly blind in her one eye and she went to the doctor for getting the
other eye operated so that the possibility of glaucoma could be removed from her working eye.
Once the surgery was over, the condition of her good eye did not improve and her bad eye got
completely blinded. The surgeon failed to inform the court that there were chances of such
occurrence. And this was held by the court as a breach of duty of care as the professionals are

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required to be more careful in comparison to an unskilled person while discharging their owed
duties.
In the given case study, Austin Homes Ltd owed a duty towards Susan for properly constructing
the house. As they were professionals, they were required to deploy care when they made this
roof based on Rogers v Whitaker. A duty of care would be deemed to be owed by Austin Homes
Ltd to Susan even when Susan had not directly purchased the home from them on the basis of
proximity between a developer and a consumer, on the basis of Donoghue v Stevenson. Applying
the case of Caparo Industries pIc v Dickman, it was foreseeable that a design fault would result
in faulty production, which would be problematic for the consumer, there was proximity between
the parties, and compensation Susan for this loss is reasonable and just. Hence, a case of
negligence can be made by Susan against Austin Homes Ltd for which they would be liable.
Also, Austin Homes Ltd cannot claim money from Susan for their negligence as it was their fault
that the roof was not built properly and not a breach of duty of care of Susan for which they can
claim money from her. And Austin Homes Ltd would have to compensate her for the damage,
apart from fixing the fault roof, despite the fact that she purchased the house from Alison.
Hence, Austin Homes Ltd owes a liability of negligence towards Susan with regards to the roof
and would not only have to compensate Susan for her loss but would also have to fix the roof
and for doing the same, they cannot claim money from Susan.

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References
Best, A., Barnes, D.W., and Kahn-Fogel, N. (2014) Basic Tort Law: Cases Statutes and
Problems. 4th ed. Frederick, MD: Wolters Kluwer Law & Business.
Caparo Industries pIc v Dickman [1990] 2 AC 605
Christie v Davey (1893) 1 Ch 316
Donoghue v Stevenson [1932] UKHL 100
E-Law Resources. (2017) ‘Occupiers' Liability’ [online]. Available at: http://e-
lawresources.co.uk/Occupiers-liability.php [accessed 02 November 2017]
Greene, B. (2013) Course Notes: Tort Law. Oxon: Routledge.
Harpwood, V.H. (2009) Modern Tort Law. 7th ed. Oxon: Routledge.
Kennaway v Thompson [1981] QB 88
Latimer, P. (2012) Australian Business Law 2012. 31st ed. Sydney, NSW: CCH Australia
Limited.
London Borough of Southwark v Mills, Baxter v LB Camden [1999] 3 WLR 939
Lord Dunedin in Robert Addie & Sons (Colliery) Ltd v. Dumbreck [1929] AC 358
Lunney, M., and Oliphant, K. (2013) Tort Law: Text and Materials. 5th ed. Oxford: Oxford
University Press.
McKinnon Industries v Walker [1951] WN 401

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Miller v Jackson [1977] 3 WLR 20
Paris v Stepney Borough Council [1951] AC 367
Rogers v Whitaker (1992) 175 CLR 479
Shelfer v City of London Electric Lighting Co (1895) 1 Ch 287
Statsky, W.P. (2011) Essentials of Torts. 3rd ed. New York: Cengage Learning.
Stephenson, G. (2012) Sourcebook on Tort Law. 2nd ed. London: Cavendish Publishing.
Turner, C. (2013) Unlocking Torts. 3rd ed. Oxon: Routledge.
Ward, P. (2010) Tort Law in Ireland. The Netherlands: Kluwer Law International.

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Bibliography
Best, A., Barnes, D.W., and Kahn-Fogel, N. (2014) Basic Tort Law: Cases Statutes and
Problems. 4th ed. Frederick, MD: Wolters Kluwer Law & Business.
Caparo Industries pIc v Dickman [1990] 2 AC 605
Christie v Davey (1893) 1 Ch 316
Donoghue v Stevenson [1932] UKHL 100
E-Law Resources. (2017) ‘Occupiers' Liability’ [online]. Available at: http://e-
lawresources.co.uk/Occupiers-liability.php [accessed 02 November 2017]
Emanuel, S., and Emanuel, L. (2008) Torts. New York: Aspen Publishers.
Greene, B. (2013) Course Notes: Tort Law. Oxon: Routledge.
H2O. (2016) ‘Wagon Mound (No. 1) -- "The Oil in the Wharf Case"’ [online] H2O. Available
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Harpwood, V.H. (2009) Modern Tort Law. 7th ed. Oxon: Routledge.
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Kennaway v Thompson [1981] QB 88
Lambiris, M., and Griffin, L. (2016) First Principles of Business Law 2016. Sydney: CCH

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Latimer, P. (2012) Australian Business Law 2012. 31st ed. Sydney, NSW: CCH Australia
Limited.
London Borough of Southwark v Mills, Baxter v LB Camden [1999] 3 WLR 939
Lord Dunedin in Robert Addie & Sons (Colliery) Ltd v. Dumbreck [1929] AC 358
Lunney, M., and Oliphant, K. (2013) Tort Law: Text and Materials. 5th ed. Oxford: Oxford
University Press.
Martin, J., and Lancer, D. (2013) AQA Law for AS Fifth Edition. 5th ed. Oxon: Hachette UK.
McKinnon Industries v Walker [1951] WN 401
Miller v Jackson [1977] 3 WLR 20
Paris v Stepney Borough Council [1951] AC 367
Rogers v Whitaker (1992) 175 CLR 479
Shelfer v City of London Electric Lighting Co (1895) 1 Ch 287
Statsky, W.P. (2011) Essentials of Torts. 3rd ed. New York: Cengage Learning.
Stephenson, G. (2012) Sourcebook on Tort Law. 2nd ed. London: Cavendish Publishing.
Trindade, F., Cane, P. and Lunney, M. (2007) The law of torts in Australia. 4th ed. South
Melbourne: Oxford University Press.
Turner, C. (2013) Unlocking Torts. 3rd ed. Oxon: Routledge.
Ward, P. (2010) Tort Law in Ireland. The Netherlands: Kluwer Law International.