Analysis of Tort Law, Nuisance, and Occupier's Liability Case Study

This case study examines two legal issues: tort law and occupier's liability. The first part addresses a scenario where Samuel claims damages from Gina due to the loss of his roses, potentially stemming from nuisance under tort law, specifically concerning pesticides and the disruptive noise from a cockerel. The analysis involves the application of legal precedents such as Rylands v Fletcher and McKinnon Industries v Walker to determine liability. The second issue involves Claire's potential claim against ShineBright for occupier's liability. This section explores the duty of care owed by landowners, the Occupiers' Liability Acts of 1957 and 1984, and relevant case law, including Addie v Dumbreck and Phipps v Rochester Corporation, to assess whether ShineBright is liable for Claire's damages. The case study provides a detailed analysis of legal principles and precedents to determine potential outcomes and liabilities.

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Property Law
Case study
11-Nov-17
(Student Details: )

CASE STUDY 2
Question 1
Issue
Whether 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 disturbance
owing to the cockerel of crows, or not?
Rule
Tort 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 be
made and these include the private and the public nuisance. Public nuisance refers to the actions
in which damage is suffered by the claimant, which is over and above the damages which the
damages which are suffered in general by public (Best, Barnes and Kahn-Fogel, 2014). On the
other hand, private nuisance refers to the rights of an occupier being protected when there is an
unreasonable interference with the enjoyment or usage of their land. Typically, the parties in
cases of private nuisance are neighbours and in order to give the verdict, a balance has to be
attained by the courts, in between the competing rights of the land owner for using their land as
they choose to do, along with the right of the neighbour to enjoy his land, without any
interference (Ward, 2010).
When a case of nuisance is aptly shown before the court, the court awards remedies to the
aggrieved party, which can be in form of injunction, compensation and abatement. A key
requirement for making a case of negligence is to show that the right of using the land has been

CASE STUDY 3
interfered with (Harpwood, 2009). Christie v Davey (1893) 1 Ch 316 was a case in which the
plaintiff was a music teacher, and she used to give lessons at her home in which her family
enjoyed to play the music. This place was a semi-detached home which adjoined the property of
the defendant (Strong and Williams, 2011). On different occasions the defendant made a
complaint of noise but the same were not paid heed too. This resulted in the defendant
screaming, shouting, banging the walls and beating trays. This led to the court upholding that the
defendant’s action had been motivated with malice which made his actions nuisance. This
resulted 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 were
made 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 his
business, he used to grow orchids and these were famous for their sensitivity. The plaintiff made
a 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. The
court upheld unlawful nuisance on part of the defendant and damages were allowed to be
recovered (E-Law Resources, 2017a).
When there is an absence of negligent conduct on part of the defendant, a particular kind of
nuisance is upheld and this is a restrictive approach based on the case of Rylands v Fletcher
[1868] UKHL 1. In this case, the defendant was the owner of a mill who had constructed a
reservoir on his land. The placement of this reservoir was over a disused mine. The water from
this reservoir was filtered through the disused mine shafts and this was spread over the working
mine which was owned by the claimant owing to extensive damage. The court held that the
defendants were liable in a strict manner owing to the damages caused owing to the non-natural

CASE STUDY 4
usage of land (Stephenson, 2012). Through this case, certain requirements were put forward for
upholding a claim on the basis of this case and included in these requirements were the
accumulation of the land of the defendant; a thing is likely to do mischief in case it escapes; there
has to be an escape; there has to be a non-natural usage of land; and the damages should not be
too remote (Statsky, 2011).
Application
In the given case study, a case of nuisance can be made by Samuel against Gina. This would
stem from the tort of nuisance. In the first instance, Gina bought a property where she brought
chickens and cockerel on the land to roam freely. The purpose of this property was thus to allow
the livestock to roam in it. However, Gina brought a range of different pesticides and chemicals
which were stacked up on the boundary, which resulted in her boundary being separated from
her 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 the
local village fete. In this case, Samuel can use the cases of Rylands v Fletcher and McKinnon
Industries v Walker to claim damages.
As was held in McKinnon Industries v Walker, the fumes from the site of the defendant had
damaged the orchids of the plaintiff. And in this case, the pesticides from the site of Gina had
damaged the roses of Samuel. And so, on the basis of this case, Samuel can make a case of
nuisance against Gina. This would allow Samuel to claim damages as compensation for the loss
caused to him.
A more apt case here however would be to apply Rylands v Fletcher in order to claim damages
for the loss sustained. This can be established through the requirements given in order to make a

CASE STUDY 5
claim based on this case. In this case, there was presence of accumulation. This is because Gina
brought hazardous material on the land and kept in there. The pesticides were not on the land
naturally and had been specifically brought by Gina. This thing was something which was likely
to do mischief. Pesticides even though are not harmful as such but have the capacity of damaging
in case they escaped, as did happen in this case. This pesticide did escape from the land of Gina
on the land of Samuel. The land was bought by Gina for livestock and not for growing something
which would require pesticides. Thus, there was a non-natural use of land by Gina. The damage
caused to Samuel was not remote as it did result in his roses being destroyed. This is because it
was reasonably foreseeable that an overuse of pesticides could harm the roses, which did happen.
And on the basis of this case, the damages can be claimed by Samuel.
In the second part of this case study, the cockerel which was bought to the property of Gina
disturbed Samuel a lot. This noisy bird made Samuel so agitated that he started playing loud
heavy rock music each time the cockerel crowed. This would allow Gina to make a claim of
nuisance against Samuel for the loud noise, which interfered with her right to enjoy her land. A
claim can be made by Samuel against Gina for the noise of cockerel disturbing his right of
enjoyment of his land, but his claim is more likely to fail. This is particularly because of the case
of Christie v Davey. As was held in that case, there was an element of malice in the actions of the
defendant and the plaintiff was merely enjoying the music and giving the lessons. On the basis of
this case, Gina can show that Samuel deliberately played loud music. There was no enjoyment
purpose as was the case with the music teacher. Samuel should have made a case in court against
Gina for the noise of cockerel instead of indulging in malice. And so, where Samuel makes a
case against Gina now, after his malicious acts, he would be liable for nuisance towards Gina.

CASE STUDY 6
Conclusion
On the basis of the discussion carried on the previous segments, it can be concluded, that a case
of under tort law can be brought by Samuel against Gina for the damage to his roses. Though, a
case of nuisance if brought by Samuel against Gina for the disturbance owing to the cockerel of
crows would fail and instead Gina can make a claim of nuisance against Samuel for this
behaviour.
Question 2
Issue
Whether Claire can claim damages from ShineBright for occupier’s liability, or not?
Rule
Occupier’s liability is the duty of care which is owed by the landowners to the ones who visit
their land. This duty over the landowners is beyond a simple land ownership. The physical
occupation is not obligatory for occupier’s liability (North, 2014). There is a difference between
negligence and occupier’s liability in sense that in the latter, the contravention of duty of care to
result in damages is not required to be established. The only requirement is to show that there
had been remoteness. So, any person who visits or even trespasses the property of the landowner
is owed a duty under occupier’s liability (Rush and Ottley, 2006).
Occupiers' Liability Act 1957 relates to the occupier’s who have been invited in the property.
Section 2(3)(a) of this act puts forward the requirement that in cases of children, there is a need
to deploy special care as the kids are likely to be less careful in comparison to the adults. So,

CASE STUDY 7
when the children visit the property of the landowner, their duty of care is enhanced (UK
Legislation, 2017a). The Occupiers' Liability Act 1984 applies over the individuals who trespass
the land of the landowners (UK Legislation, 2017b). Trespassing refers to any such act where the
individual goes to the land of another, without the permission of the landowner and also when
such landowner is not present on the land and this definition was given in Robert Addie & Sons
(Colliery) Ltd v. Dumbreck [1929] AC 358 by Lord Dunedin (E-Law Resources, 2017b).
The case of Addie v Dumbreck [1929] AC 358 helps in clarifying the duty of occupier’s when it
comes to children. In this case, View Park Colliery was owned by the defendant and this was
located in a field which was adjacent to the road. Around the perimeter of the field, there had
been a fence; though, this fence had large gaps at places. This field was used more than often as
a short cut for the railway station and was also used by the children as their playground. The
defendant had given numerous warnings to the people to stay off the land, yet his attempts did
not prove to be effective and there were no real attempts made for making certain that no one
would come on his land. Sometime later, while a child came on his land, he was killed as he
climbed on a piece of haulage apparatus. When the matter reached the court, it was held that a
duty of care was not owed to the trespassers for ensuring that they were safe when coming in the
land. In such cases, the only duty which had been owed was not to inflict the harm in a wilful
manner. The only duty which the court held on part of the landowner was not to injure the
trespasser in a malicious manner (E-Law Resources, 2017c).
The case of Phipps v Rochester Corporation [1955] 1 QB 450 revolved around a five year old
boy who was walking across open ground and had been accompanied by his seven year old
sister. However, both the kids were not accompanied by any adult. While crossing a trench, he
fell into it and got injured. The claim was brought before the court and the defendant was not

CASE STUDY 8
held liable (Lunney and Oliphant, 2013). This was because the court held that an occupier is
entitled to make the assumption that reasonable parents would not permit their children to go
alone in such places which were unknown or unsafe for them. On the matter of duty owed to the
children, Devlin J stated that there was a striking different in between the adults and the children.
And there was a similar distinction between little children and big children. The occupier cannot
presume that the all children would behave like adults but he can safely presume that a little
child would always be accompanied with a prudent individual. The safety of children primarily
depends upon t he parents of such child and it is their duty to ensure that the children do not
wanter off and also have an obligation to satisfy themselves that the places where their children
goes is safe for the child to be left unaccompanied. Shifting the burden on the occupier in such
cases would thus be unreasonable (E-Law Resources, 2017d).
A similar ruling was given in the case of Ratcliff v McConnell and Harper Adams College [1997]
EWCA Civ 2679 the court allowed the appeal of the defendant and the plaintiff was not held
entitled to compensation. In this case, the defendant had put notice at the shallow end of the pool
stating ‘shallow end’ and at the deep end a notice was put ‘deep end, shallow dive’. The court
held that the defendant had taken great steps for reducing trespass. Also, the board were installed
which warned every one of the ends of the pool. So, the court held that the defendant had
properly discharged their duty and thus cannot be made liable for the injuries sustained by the
plaintiff (E-Law Resources, 2017e).
Application
In the given case study, ShineBright was redeveloping its premises owing to the boom in his
business. Claire was an eleven year old kid from the local village and she was passing the

CASE STUDY 9
premises of ShineBright by riding on a bicycle. As there was a gap in the temporary barbed wire
surrounding the premises, Claire was able to crawl inside the premises of ShineBright. Even
though there had been warning on the barbed wire fence which showed that there was danger due
to the premises being under construction and so the people had to keep out of it. Claire fell on the
staircase on the newly built basement and she sustained injuries in form of her right leg breaking.
The concept of occupier’s liability would be applied to this case and this would be applicable
under Occupiers' Liability Act 1984 instead of Occupiers' Liability Act 1957. This is because the
trespassing provisions are covered under 1984 act. As a result of it, section 2(3)(a) of the
Occupiers' Liability Act 1957 would not apply on ShineBright as they had not invited Claire on
the property and she had actually trespassed. This can be established through the case of Robert
Addie & Sons (Colliery) Ltd v. Dumbreck as Claire entered the premises of ShineBright without
their permission.
Applying the case of Addie v Dumbreck, here the facts of the case study match the quoted case
and so the decision of this case can be easily applied to the case study. For the trespassing of the
child on their premises, ShineBright cannot be made liable. This was because here there was an
absence of a wilful harm on part of ShineBright. The absence of malicious intent and actions
would fail to hold ShineBright liable for the injuries of Claire. This can further be strengthened
with the help of case of Ratcliff v McConnell and Harper Adams College. As per this case,
ShineBright had deployed the reasonable measures to warn the world about the area being
dangerous owing to the construction work being carried on. This would mean that ShineBright
had properly discharged the duty which they owed and thus, cannot be made liable for the
injuries sustained by Claire.

CASE STUDY 10
Applying the case of Phipps v Rochester Corporation to the present case, here Claire was an
eleven year old child who was not accompanied by her parents and was left to wander off alone
even at such places which were not safe for her. Even though the occupier’s liability is enhanced
in the cases of children, but the same extends to being careful in a reasonable manner only. Here,
it was the fault of the parents of Claire that she was left unaccompanied and left to wander off
alone, even when the places which she visits were likely to harm her. And on the basis of the
quoted case, ShineBright would not be liable towards Claire and instead Claire can choose to
make a case against her parents for breaching the duty of care which they owed to her.
Conclusion
Thus, the application of the rules to the facts of the given case study reveals that a case of
occupier’s liability would not be successful against ShineBright by Claire.

CASE STUDY 11
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.
E-Law Resources. (2017a) McKinnon Industries v Walker [1951] WN 401 Privy Council.
[Online] E-Law Resources. Available from: http://e-lawresources.co.uk/cases/McKinnon-
Industries-v-Walker.php [Accessed on: 11/11/17]
E-Law Resources. (2017b) Occupiers' Liability. [Online] E-Law Resources. Available from:
http://e-lawresources.co.uk/Occupiers-liability.php [Accessed on: 11/11/17]
E-Law Resources. (2017c) Addie v Dumbreck [1929] AC 358 House of Lords. [Online] E-Law
Resources. Available from: http://www.e-lawresources.co.uk/cases/Addie-v-Dumbreck.php
[Accessed on: 11/11/17]
E-Law Resources. (2017d) Phipps v Rochester Corporation [1955] 1 QB 450. [Online] E-Law
Resources. Available from: http://www.e-lawresources.co.uk/cases/Phipps-v-Rochester-
Corporation.php [Accessed on: 11/11/17]
E-Law Resources. (2017e) Ratcliff v McConnell and Harper Adams College [1997] EWCA Civ
2679 Court of Appeal. [Online] E-Law Resources. Available from: http://www.e-
lawresources.co.uk/cases/Ratcliff-v-McConnell.php [Accessed on: 11/11/17]
Harpwood, V.H. (2009) Modern Tort Law. 7th ed. Oxon: Routledge.
Lunney, M., and Oliphant, K. (2013) Tort Law: Text and Materials. 5th ed. Oxford: Oxford
University Press.

CASE STUDY 12
North, P. (2014) Occupiers' Liability. Oxford: Oxford University Press.
Rush, J., and Ottley, M. (2006) Business Law. London: Thomson Learning.
Statsky, W.P. (2011) Essentials of Torts. 3rd ed. New York: Cengage Learning.
Steele, J. (2017) Tort Law: Text, Cases, and Materials. 4th ed. Oxford: Oxford University Press.
Stephenson, G. (2012) Sourcebook on Tort Law. 2nd ed. London: Cavendish Publishing.
Strong, S.I., and Williams, L. (2011) Complete Tort Law: Text, Cases, & Materials. 2nd ed.
Oxford: Oxford University Press.
Turner, C. (2013) Unlocking Torts. 3rd ed. Oxon: Routledge.
UK Legislation. (2017a) Occupiers’ Liability Act 1957. [Online] UK Legislation. Available
from: https://www.legislation.gov.uk/ukpga/Eliz2/5-6/31/contents [Accessed on: 11/11/17]
UK Legislation. (2017b) Occupiers’ Liability Act 1984. [Online] UK Legislation. Available
from: https://www.legislation.gov.uk/ukpga/1984/3 [Accessed on: 11/11/17]
Ward, P. (2010) Tort Law in Ireland. The Netherlands: Kluwer Law International.