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Introduction
The presented legal submission is an advice to Jagadeesh who is injured by the act of his neighbours Anika and Claudia. The rules of tort relating to private nuisance are applicable as per the facts of the case.
As per the facts of the case, the following are the issues identified:
Whether Anika is held liable for creating nuisance over the property and making unlawful interference?
Whether Jagadeesh is entitled to claim compensation from the neighbours Anika and Claudia for the injuries he has sustained?
Whether Claudia is equally liable under the law occupier’s liability or she can get concession in paying compensation?
RULE
As per the material facts of the instant case, it is observed that the law of nuisance on private property under tort law is applied. In the subsequent part provided in the facts, it is also observed that the law for occupier’s liability under law of nuisance is also made applicable in this case. Before discussing the further application of this rule, it is important to understand the meaning of private nuisance.
Privet nuisance under tort law is the unlawful interference regarding the free use of land or property or interference regarding any right in the use of land or property or anything related to it. Reference of the case Bamford v.Turnley[1]can be taken where the court provided for the meaning of unlawful interference and held that unlawful interference means the interference which is unreasonable. The court also held that interference could be in any form for example, smell, noxious fumes or noise which is coming from a neighbourhood property (Nolan, 2019).
It is also noteworthy that excessive of interference is actionable under the law of tort and there are mainly three kinds of interference which is termed as unlawful. These are:
Encroachment: This type of interference is through branches or roots which are extending from the boundaries and beyond creating interference.
Physical damage inflicted on the property: This interference is through fire, pollution of water or air.
Interference with enjoyment and use of land: This interference is through noise, smell or dust.
But in cases of private nuisance, it is important to note that when a claim is made for disturbance or interference, the court has to strike a balance between the interest of both the parties. another reference can be taken of the case Hunter and others v. Canary Wharf Ltd[2]where the court held regarding the persons who are entitled to claim for disturbance or private nuisance. The court held that, a tenant, an occupier of the land or the owner is entitled to make the claim for disturbance occurring and falling under private nuisance. Moreover, the court also held that licensees who occupy the land with the permission of the owner do not have the right to claim for private nuisance in the property for example, lodgers, housekeepers, visitors or hotel guests are not entitled to claim for private nuisance. The claim of the plaintiff arises when there is unlawful disturbance or interference over the use of land or enjoyment of land by the defendant (Steel, 2017).
Discussing further, it is also important to consider the circumstance when the interference shall be termed as unreasonable. The answer to this question is whether the interference shall be termed as unreasonable shall depend on the factors like duration of the interference or the intensity of the interference or the frequency of the interference. It has been held under law of tort for private nuisance that a continuous interference is actionable and is considered as unreasonable. Though isolated acts are not actionable but if these acts are repeated regularly, they become actionable. Reference of the case Miller v. Jackson[3]where the court held that the regular hitting of the cricket ball over the garden of a property comes under unreasonable interference.
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Apart from this it has also been stated under the tort law that malice or improper motive also comes under unreasonable interference with the property. Reference of the case Hollywood Silver Fox Farm v. Emmett[4] can be taken where the defendant was continuously shooting with the intention of irritating his neighbour and also for annoying and disturbing the breeding foxes on the neighbour’s property. The court held that such an act falls under malice and unlawful intention to interfere with the property of the neighbour and also with an intention of disturbing the neighbour.
Apart from the application of the above rule, it is also important to note that as per the facts of the case, there is also applicationof the principle called occupier’s liability. This liability brings action against the person who is acquiring the property from where the interference has been committed. As per the provisions provided under Section 1(3)(a) of the Occupier’s liability Act 1957, it has been defined that a land, building or any moveable object is termed as premises for the purpose of determining liability of the occupier. Thus, if the accused person is possessing a land or building from where the interference has started or in possession of any moveable object which has created interference, the occupier of such premises shall be held liable.
Reference of the case Wheat v. E Lacon& Co Ltd[5]where the court provided for the definition of the occupier and held that “An occupier is that person who is having substantial control and sufficient grade of control over the property.” Hence, at this point, there arises a duty of the occupier that is the duty of care towards the visitors and that the visitors are safe during using the premises. Section 2(2) is attracted at this point which states that it is the duty of the occupier as a duty of care towards the visitor to look that the visitor is safe while using the premises of the occupier (Fraley,2018).
But as per the facts of the given case, Jagadeesh who was disturbed from the act of the neighbour Anika, was not a visitor in the property who came to visit but he entered the property jumping from the wall as a trespasser. Hence, it is important to consider that what is the duty of care which is owed by the occupier of the property towards trespassers. The visitors visit the property of the occupier with the consent of the occupier but as soon as the consent is exceeded the visitor becomes a trespasser. Reference to the case Hillen v. ICI (Alkali) Ltd[6]where it was held by the court that when the visitor exceeds the consent amd permission granted by the occupier, the visitor becomes a trespasser.
In answer to this question, the provision of Section 1(3) of the Occupier’s Liability Act 1984 is applied which provides for the duty of care of the occupier towards trespassers. The provision states that, the liability of the occupier is attracted if all the three conditions provided in the provision are satisfied. The three conditions to make the occupier liable are as follows:
If the occupier believed or had reasons to believe that there exists a danger in the property or has reasonable ground to believe the same.
If the occupier knows or has reasons to believe that the other person is in vicinity or near to danger or come near to danger whether the other person in either of the case is lawfully entitled to come near danger or not.
If the occupier knows that in case of risks, he is capable of offering some protection to the other person (Goldberg, et. al., 2021).
Thus, in case all the above-mentioned conditions are satisfied, the occupier of the property shall be held liable even towards trespassers of the property in case the trespassers suffer any injury.
Reference of the case Donoghue v. Folkstone Properties[7]can be taken in which it was held by the court that if it is known to the occupier or he has reasonable grounds to believe that the other person may be in vicinity to danger or may come in vicinity to danger, he shall be held liable for the injuries sustained by the other person. Further another case ofWhite v. St Albans City and District Council[8]can be considered where it was held by the court that it shall be reasonable for the occupier to put some kind of protection from the danger on his property.
APPLICATION
As per the facts of the case, Claudia is an architect who purchased a house in 2018. Anika her partner moved to live with her in 2019 and she is a professional drum player in a band. She practices her drum playing at the backside of the house downstairs where there is a spare room. She does her practices in evening sometimes till late at night. Jagadeesh has recently moved to the house in the neighbour of Claudia and he works for 12 hours a day with his shift starting from 6 a.m. in the morning and he works for 4 days in a week, hence, it is obvious that he has to sleep by 10 p.m. everyday. Jagadeesh has complained of loud noises on several occasions and he requested Anika if she could limit her practice to 3 days a week and end up practicing by 8 p.m. in the evening but she refused. Claudia is sympathetic towards Jagadeesh and she planned a practicing room to be built at the bottom of her garden. She got the plans approved by the local council and the construction work began and the builders dug a six feet deep foundation. The rest of the building work is expected to be commenced in a few days and the builders also set up spot lights around the foundation to avoid slips and falls. The lights have been automatically adjusted to lit up by 6 p.m. in the evening and turned off by 5 a.m. in the morning every 24 hours.
Jagadeesh woke up by 11.30 p.m. at night by the loud noise of drums and approached his neighbour Anika and knocked the door but due to the noise, nobody came to open the door. Jagadeesh then decide to knock the window of the room where Anika was practicing and hence, he climbed the 8 feet wall through a ladder and goes on the garden wall. The light was not proper as the foundation lights were off because Anika unplugged it to switch her amplifier on. Jagadeesh decided to jump on the ground by hanging from the wall as he thought that the distance between hanging and jumping would be merely 2 feet. As he jumped, he falls into the 8 feet deep foundation breaking his ankle and suffering injury at his lower back. Soon Claudia came out to smoke and switched on the foundation light and saw Jagadeesh lying in the foundation and calls the ambulance to take him to the hospital.
Liability of Anika
On applying the above discussed rule on the given facts, it is clear that the noise made by Anika while practising band late at night is under private nuisance over property resulting in unlawful interference with the enjoyment of property by Jagadeesh.As is clear from the definition and meaning of nuisance, the playing of loud noise in the property is an unlawful interference with the right of enjoyment of the property of the neighbours. This act is unlawful as playing band at reasonable time period is permitted but playing late at night is an interference in the peaceful enjoyment of property.
Moreover, Jagadeesh isthe owner of the nearby house and hence, he is entitled to make the claim for damages as he has suffered injury but before making the claim for compensation, Jagadeesh has to satisfy some points before the court as he did not enter the house of Claudiain a lawful manner. Though his entry cannot be termed as trespassing as his intention was merely to request Anika to stop her band practice.
Liability of Claudia
On applying the provision of Section 1(3)(a) of the Occupier’s liability Act 1957, it is clear that the property is within the category of premises to establish the liability of Claudia as occupier. Further the application of Section 1(3) of the Occupier’s Liability Act 1984, makes it clear the occupier of the property that is Claudia and owe a duty of care towards visitors and persons other than visitors. Towards visitors, shehas a duty of care that the visitors are not harmed in any manner while visiting their property (Karner, et. al., 2018).
It is important to note that when Jagadeesh knocked the front door of the house of Anika and Claudia to request them to stop practicing, he was a visitor and hence, at that point the occupiers were under a duty of care and strict liability towards Jagadeesh that no kind of injury is sustained by him as a visitor.
Further, as nobody opened the door due to loud noise, Jagadeesh decided to go by jumping through the wall. Though he cannot be regarded as trespasser as his intention was merely to request the two owners to stop practicing, hence, there is duty of owner Claudia to take reasonable steps to prevent the injury to persons other than visitors. On application of Section 1(3) of the Occupier’s Liability Act 1984,it is clear that there is occupier’s liability towards persons other than visitors and they owe a duty of care towards them and protect them from danger in the property (Cane, 2017).
As it was known to Anika and Claudia that there was a deep six feet hole in the garden due to the ongoing construction work, and the builders took proper care by lighting with spot lights, it was further the duty of the occupier (Claudia in this case) to take reasonable care to prevent injuries. The act of Anika to unplug the spot light to play her amplifier was a negligent act and hence both shall be held liable for the injuries sustained by Jagadeesh.
As Anika and Claudia had apprehension that there could be injury sustained by anyone due to the deep hole, they are liable for not taking due care to prevent the injury. Further they were also under the liability of providing reasonable protection but they unplugged the spot light which was another act of negligence.
Remedies for Jagadeesh
The following remedies are available to Jagadeesh for the injuries he has sustained:
Damages: Jagadeesh to entitled to claim damages from the occupiers Anika and Claudia for physical discomfort and also the continuing nuisance through loud noise as the defendants knew the effects of their acts.
Compensation for injuries: Jagadeesh is also entitled to claim monetary compensation for the expenses of his hospital bills as he has suffered injury on his lower back and he has also broken his ankle.
Injunction: This is a discretionary remedy available to Jagadeesh. Though this remedy is available at the discretion of the court but in this case, this remedy is necessary to stop the loud noise by Anika. Thus, Jagadeesh could apply for this remedy as well (Goudkamp and Nolan, 2019).
Concession to Claudia
It is important to note that the liability of Claudia could be reduced on the ground that she was sympathetic towards and Jagadeesh and also took a measure of constructing a separate practicing room at the bottom of the garden. As she took the initiative to stop the occurring nuisance, her liability could be reduced on this ground (Goldberg, et. al., 2021).
CONCLUSION
Thus, to conclude, it can be settled that, as per the facts of the above case the tort law relating to private nuisance is applied on this case. Apart from this, the law relating to occupier’s liability is also applicable in this case. Applying the law relating to private nuisance it can be concluded that, the act of Anika was an interference in the peaceful enjoyment of property of the neighbours and hence, she shall be held liable under creating nuisance under tort law. Further, Claudia shall also be held liable as occupier of the property under breach of duty of care towards visitors and persons other than visitors has sustained injuries to Jagadeesh. Thus, they shall be held liable and appropriate amount of compensation should be paid to Jagadeesh. The court should also grant an injunctive relief to Jagadeesh to stop late night band practices of Anika.
Concluding remarks
Thus, as a concluding remark of the assignment, it can be settled that the law of trot for private nuisance attracts liability where the defendant is held liable for causing unlawful interference in the enjoyment of the use property. Moreover, if the defendant is within the category of occupier as provided under the occupier’s Liability act 1957, he should be held liable for compensation to be paid to the plaintiff.
References
Bamford v. Turnley (1862) 3 B & 5 66
Cane, P., 2017. Key Ideas in Tort Law. Bloomsbury Publishing.
Donoghue v. Folkstone Properties (2003) (QB 1008; 2 WLR 1138
Fraley, J.M., 2018. Liability for Unintentional Nuisances: How the Restatement of Torts Almost Negligently Killed the Right to Exclude in Property Law. Va. L. Rev., 121, p.419.
Goldberg, J.C., Sebok, A.J., Zipursky, B.C. and Kendrick, M., 2021. Tort law: Responsibilities and redress. Wolters Kluwer.
Goudkamp, J. and Nolan, D. eds., 2019. Scholars of Tort Law. Bloomsbury Publishing.
Hillen v. ICI (Alkali) Ltd [1936] A. C. 65 (pp. 120-121)
Hollywood Silver Fox Farm v. Emmett [1936] 2 KB 468
Hunter and others v. Canary Wharf Ltd [1997] AC 655
Karner, E., Oliphant, K., Steininger, B.C. and Verlag, J.S. eds., 2018. European tort law: basic texts. Jan Sramek Verlag.
Miller v. Jackson [1977] QB 966
Nolan, D., 2019. The Essence of Private Nuisance. Modern Studies in Property Law Volume, 10, pp.71-88.
Occupier’s Liability Act 1957
Occupier’s Liability Act 1984
Steel, S., 2017. The Locality Principle in Private Nuisance. Cambridge LJ, 76, p.145.
Wheat v. E Lacon& Co Ltd [1966] AC 552
White v. St Albans City and District Council [1990] EWCA Civ 18
