The law of tort introduction a. What is a Tort?

D PUBLIC NUISANCE

Where a nuisance affects a substantial number of people, it is said to be a “public nuisance” . The nuisance need not interfere with the use of land as such, but may interfere with any aspect of the public’s rights, and may therefore take many forms. Cases include (i) obstructing the highway (Chaplin v Westminster Corporation (1901)) (ii) making obscene telephone calls (R v Norbury (1978)) and organising raves (R v Shorrock (1994)). The wide ambit of the tort allows for some judicial surprises for example in Thomas v National Union of Mineworkers (1985) Scott J ruled that picketing might amount to a public nuisance. This was on the ground that it was an unreasonable harassment of those at whom it was directed – even though it did not constitute an assault on them and had no prospect of preventing them from going to where they wanted to go. In each case the court goes through the same process of balancing a defendant’s rights against those of the others (as in private nuisance)

1. 
   the defendant must bring the thing on his land and must do so for his own purposes
   
2. 
   the thing must be likely to do mischief if it escapes
   
3. 
   the defendant’s use of the land must be non-natural
   
4. 
   the thing must escape
   

“Dangerous things”

It seems the meaning here is that something must escape as a result of an accumulation but it need not be the accumulation itself.

• 
  if the immediate cause of the incident was the act of a trespasser, there is no liability unless the defendant ought reasonably to have foreseen and prevented the trespasser’s action (Perry v Kendricks Transport 1956).
  
• 
  If the immediate cause of the incident was some unforseeable natural cause (Act of God), such as unforseeably heavy rainfall, the defendant is not liable (Nichols v Marsland 1876)
  
• 
  A Claimant cannot complain of an escape which was the Claimant’s own fault. On the question whether a Claimant can complain of a loss which would not have happened but for the Claimant’s abnormal sensitivity, the authorities conflict.
  
• 
  If damage of the type the Claimant suffers was not foreseeeable at all a Claimant cannot claim (Cambridge Water case)
  

Other defences

• 
  that the Claimant consented to the dangerous accumulation. Consent may often be inferred from the knowledge of the accumulation. However, if a Claimant knows of the accumulation but not that the defendant has acted negligently, then the defendant remains liable for negligence to which the Claimant has not consented (Peters v Prince of Wales Theatre (1943).
  
• 
  If the accumulation was carried on for the common benefit of the Claimant and the defendant, it can usually be taken that the Claimant has consented to it (Prosser & Son v Levy 1955)
  
• 
  That the defendant had a statutory duty or authority to make the accumulation despite the danger. It appears that if the statute places the defendant under a duty to act (as where a water company is placed under a duty to maintain pressure in its pipes), the defendant will probably not be liable for the unavoidable risk of escape unless negligence is proved.
  

Fire
Strict liability for fire pre-dates Rylands v Fletcher but it is usually discussed as an example of Rylands liability, which exists alongside negligence liability for fire. So where the carburettor of a defendant’s car caught fire in the plainitiff’s garage, the court applied Rylands (Musgove v Pandelis 1919).

• 
  it is not commonly domesticated in the British Isles; and
  
• 
  fully grown members of the species either are likely to do severe damage unless restrained, or are such that any damage they do is likely to be severe.
  

Individually dangerous animals

• 
  the damage the animal caused was of the sort it was likely to cause unless restrained, or which was likely to be severe if that animal did it;
  
• 
  that animal’s dangerous characteristics are not usually found in animals of that species
  
• 
  the defendant knew of the danger or the person in charge knew of the danger.
  

The liability of a keeper under the Animals Act 1971 is strict and it is quite irrelevant whether the harm done by the animal has anything to do with its dangerous characteristics. The Act, however, recognises certain defences:

• 
  The Claimants own fault: damage which is wholly the Claimant’s fault attracts no liability at all. Damage which is partly the Claimant’s fault may lead to a reduction in damages.
  
• 
  The Claimant’s consent: a Claimant cannot sue where the Claimant earlier agreed to run the risk of harm.
  
• 
  The Claimant is a trespasser: a Claimant cannot recover for an injury caused by a defendant’s animal if the defendant shows that it occurred when the Claimant was trespassing on the defendant’s land, except if the defendant keeps an animal deliberately to guard the land, in that case the defendant has a defence only if he/she can show that it was reasonable to use the animal in this way. (the Guard Dogs Act 1975 strictly regulates the use of guard dogs)
  

Special cases

Where the defendant is keeper of a dog which harms a Claimant’s livestock, the defendant is strictly liable to the Claimant. Livestock is precisely defined in the Act and means “cattle, horses, asses, mules, hinnies, sheep, pigs, goats and poultry and also deer not in the wild state, and while in captivity, pheasants, partridges and grouse” (s.11 Animals Act 1971).

Where the defendants livestock strays onto another’s land, there is strict liability for property damage done as a result. There is also a statutory right to detain the offending animals to charge for their care while detained and ultimately to sell them off if not reclaimed (s.7 Animals Act) .

2. 
   DEFAMATION
   

Defamation is not an easy tort to define. It has been defined as