Case Study of Potential Liability in the Law of Tort

Introduction In this paper, I will advise Druid Sons Ltd as to its potential liability in the law of tort, specifically in regard to the losses and injuries caused to David and Percy, respectively, by the discharge of excess chemical fumes from its waste treatment plant; and, more generally, in regard to potential claims from nearby residents and businesses in regard to the interference caused to their TV, broadband and mobile phone reception. While it is likely that each of these potential categories of claim would be brought in the tort of private nuisance[1], it should be noted that this tort has developed into two separate categories, defined by the nature of the damage suffered, each with its own particular legal requirements. Before one can advise on which category should apply in any given case, it is first necessary to understand the historical and, to some extent, public policy context of this development: Historically, the tort of private nuisance was considered to be a strict liability tort. However, during the Victorian era, there was growing concern that the strict liability nature of this tort would interfere with the industrialization process[2]. Therefore, in the case of St Helens Smelting Company v Tipping (1865)[3] a distinction was introduced between the approach which should be adopted in cases where “the alleged nuisance produces material injury to [a] property,[4]” and the approach which should be adopted when the nuisance complained of involves “personal inconvenience and interference with one’s enjoyment, one’s quiet, one’s personal freedom [or] anything that discomposes or injuriously affects the senses or the nerves…[5]” In the former case, the tort of private nuisance was to be considered a strict liability tort; whereas, in the latter case, the Court, when determining whether or not to impose liability, was deemed entitled to consult such factors as the reasonable residential expectations[6] and also the personal sensitivities of the complainant. With this development in mind, let us now turn to examine the likelihood of David and Percy being able to bring successful claims against Druid & Sons in the tort of private nuisance, and also the likelihood of claims being brought by other residents for interference to their TV, broadband and mobile phone reception: David v Druid & Sons in the tort of private nuisance: The first thing to note is that David will only be able to bring a claim against Druid & Sons if he possesses a proprietary interest in the land in question (i.e. the land on which the grass was being grown)[7]. On the facts, there is no indication that David does not possess such an interest. In regard to which branch of the tort will apply in this case: As per our earlier analysis, because the damage suffered by David is material in nature, in that its extent does not depend upon his own preferences and/or sensitivities, the strict liability branch of the tort of private nuisance will be applicable, and it is therefore irrelevant whether or not the Druid & Son recycling plant existed before David commenced using his land for rearing Jersey cows[8]. In regard to proving that the damage suffered was actually caused by the excess chemical discharge in question: So long as the existence of this excess discharge can be proved on the balance of probabilities and also that the chemicals in question are likely to interfere with the health of livestock, if ingested, then the Court will not require David to prove that it was this chemical discharge which caused his Jersey cows to become ill.

This damage will likely be presumed in accordance with the principle handed down in the case of Fay v Prentice (1845)[9]. In regard to David being able to satisfy the test of remoteness applicable to the tort of private nuisance: In the case of McKinnon Industries Ltd v Walker [1951][10] it was held that damage caused to crops, by the excess emission of Sulphur Dioxide, from a neighbouring industrial plant, was not too remote a type of damage to be deemed actionable in this tort. In my opinion, if this type of damage is to be considered actionable in the tort of private nuisance, then so too should the damage arising as a foreseeable and direct result of crops becoming contaminated in this way: Where grass crop is being grown for the purpose of feeding livestock then, if one accepts that the damage to these crops is actionable, then it follows that damage to the livestock as a result of their eating these crops will also be deemed actionable by the Courts, although only to the extent that this damage has affected the value of the land[11]. In regard to the defences available to Druid & Sons: It is unlikely that it will be able to rely upon the defence of statutory authority, even if it has complied with its statutory obligations under the relevant environmental regulatory instruments, unless it can be shown that the excess emissions complained of were an unavoidable result of the licensed industrial activities being undertaken[12]. In this case, the excess emissions could have been prevented, presumably, by employing a higher capacity fume collection system. It will also be impossible for Druid & Sons to rely upon the defence of twenty years’ prescription, because this would require evidence that the plant has been emitting excess amounts of chemical compound for a continuous period of twenty years, which is not the case, as the excess emissions complained of were ‘unexpected’ and a result of a ‘particularly busy period of work’. In conclusion, it is likely that David will be able to bring a claim against Druid & Sons in the private tort of nuisance; although the damages available to him will be limited to the damage caused to his the value/ amenity of his land. In this regard, he will not be able to recover the cost of his veterinary bills via the tort of nuisance, but will be entitled to some compensation for the temporary (or permanent) loss of the amenity of his land, presuming that he had to relocate the cows to another field, or decontaminate the land in order to restore its utility. In order to recover these specific veterinary costs, it will be necessary to bring a concurrent claim in the tort of negligence. David v Druid & Sons in the tort of negligence: While there will be no difficulty establishing a duty of care, in light of the physical proximity of the parties[13], because the emissions in question were ‘unexpected’, it might be possible for Druid & Sons to argue that they were not in breach of this duty because there was no way that any waste plant, however competent, would have predicted these effects. If the Court is satisfied that the plant did adhere to all relevant professional standards, it is highly unlikely that a claim for negligence brought by David would be successful[14]. However, if the excess emissions could have been predicted as a result of accepting a larger than usual amount of work, then it is likely that Druid & Sons will be considered to have acted in breach of its duty of care towards David. However, in order to claim damages for the veterinary costs, David must prove that, on the balance of probabilities, his cows would not have required treatment ‘but for[15]’ the negligence of Druid & Sons. The result of this enquiry will depend upon expert testimony. Presuming that factual causation can be established, the final element of the tort of negligence which must be satisfied is the test for remoteness of damage. The appropriate test in such cases is one based upon factual assessments of reasonable foreseeability[16]. I see no problem here: In the case of Stewart v West African Terminals Ltd [1964][17] it was held that “it is not necessary that the precise concatenation of circumstances should be envisaged…if the consequence was one which was within the general range which any reasonable person might foresee…and anticipate.” In conclusion, presuming that David will be able to prove factual causation on the balance of probabilities, he will likely be able to bring a successful claim in the tort of negligence to recover the costs associated with the treatment of his cows. Percy v Druid & Sons in the tort of private nuisance for the damage caused to his crops: The major difference between David’s claim in the tort of private nuisance and that which may be brought by Percy is the fact that Percy’s land is several miles away from the plant whereas David’s land is immediately adjacent to it. Therefore, even if the Courts presume damage in accordance with the principle espoused in the case of Fay v Prentice (1845)[18], there may be difficulty in proving that the damage in question was reasonably foreseeable. After all, the decision in the case of McKinnon Industries Ltd v Walker [1951][19] was made in regard to damage caused to crops on a neighbouring farm. This assessment will depend upon evidential considerations, such as the likelihood of emissions travelling several miles, the degree of dissipation which would likely have occurred over that distance and how these factors ought to affect the reasonable foreseeability of the kind of damage suffered by Percy. Presuming that the test for foreseeability can be satisfied on the balance of probabilities, then Percy’s claim in this regard will likely be successful and he will be able to recover the losses sustained to his land[20]. Percy v Druid & Sons in the tort of private nuisance for personal injury: Generally, damages for personal injury are not recoverable in the tort of private trespass.

However, in the Hunter case it was held that a claimant can recover for his loss of amenity (of his land only) as a result of the person injury in question, for example if the value of the land has decreased as a result of it being dangerous to occupy. In this case, because the excess emission causing the damage was a one-off ‘unexpected’ event, it will be difficult for Percy to argue that the private nuisance has caused the value of his land to significantly decrease in this way. Percy v Druid & Sons in the tort of negligence for personal injury: So long as it can be shown that emissions of the kind in question are capable of travelling several miles and still causing damage at that distance, then the analysis provided earlier in regard to David’s claim against Druid & Sons in the tort of negligence will be equally applicable to Percy’s claim. If these same requirements are satisfied, then Percy will be entitled to claim damages for his pain suffering and loss of amenity [not only as a result of the attack itself but also in regard to the distress associated with recalling/ remembering that event[21]] and also for his pecuniary losses [as a result of not being able to work for a period of 2 weeks[22]]. If there is any chance that Percy might again have to take time off work, as a direct result of his original attack, then he may also be granted a provisional award[23]. A claim by local residents and businesses whose TV, broadband and mobile phone receptions are interfered with by the general omissions of the Druid & Sons Plant: While it has been held at law that the interference, by a building, of TV, broadband or mobile phone reception cannot amount to a nuisance in the law of tort[24], this does not necessarily apply to interference caused by emissions from a building. After all, such damage may substantially affect the amenity of land; for example, it would be more difficult to sell a house which was unable to receive TV signals at that same price as a similar property which was able to receive TV signals. In this regard, presuming that the degree of interference is significant, then the test of substantiality as handed down in the case of Sedleigh-Denfield v O’Callaghan (1872)[25] would likely be satisfied. However, the defence of proscription would be able to defeat such claims if the plant has been interfering with such signals for a continuous period of twenty years and this interference has never been challenged successfully[26]. Likewise, if Druid & Sons can prove that all such plants necessarily interfere with these signals, then any claims arising could be defeated on the basis of statutory authority[27]. If neither of these defences apply, then it is possible that Druid & Sons could face multiple claims by nearby residents and businesses in the tort of private nuisance. Conclusions: In regard to a potential claim by David in the tort of private nuisance: It is likely that such a claim would be successful and that David could recover a sum of money in damages for the loss of amenity which he suffered as a result of the material damage caused to his land. In regard to a potential claim by David in the tort of negligence: Presuming that David can prove, on the balance of probabilities, that his cows would not have required veterinary attention but for the excess toxic emissions released for the Druid and Son waste plant, then his claim will likely be successful and the company will be liable to meet the costs of the said treatment. In regard to a potential claim by Percy in the tort of private nuisance for the damage caused to his crops: So long as it can be proved that it is capable for emissions to cause damage over a distance of several miles, then it is likely that such a claim would be successful and that Percy could recover a sum of money in damages for the loss of amenity which he suffered as a result of the material damage caused to his land. In regard to a potential claim by Percy in the tort of private nuisance for the personal injuries which he has suffered: Such a claim will not be possible. In regard to a potential claim by Percy in the tort of negligence for the personal injuries which he has suffered: Such a claim would likely succeed so long as it can be proved that Percy would not have suffered his asthma attack but for the excess toxic emissions released for the Druid and Son waste plant and also that this type of damage was a reasonable foreseeable consequence of excess emissions being released. In regard to claims arising from local residents and businesses in regard to the interference caused to their TV, broadband and mobile reception by the plant’s emissions: If the plant has been interfering with these signals for a period of at least twenty years or such interference is a unavoidable consequence of operating such a plant, then such claims would likely fail.

Otherwise, such claims would be likely to succeed. References: St Helens Smelting Company v Tipping (1865) 11 H.L.C. 642 Brenner, J. (1973) Nuisance Law and the Industrial Revolution. 3 Journal of Legal Studies 403. Harlow, C. (2005) Understanding Tort Law. Sweet and Maxwell Publishing. Sturges v. Bridgeman (1879) 11 ChD 852 Miller v Jackson [1977] QB 966 Bliss v Hall (1838) 4 Bing NC 183 Southwark LBC v Mills [2001] 1 AC 1 Fay v Prentice (1845) (1845) 1 CB 828 McKinnon Industries Ltd v Walker [1951] 3 DLR 577 Hunter v Canary Wharf [1997] 2 All ER 426 Winfield and Jolowicz (2002) Winfield and Jolowicz on Tort [W.V.H. Rogers (ed.)]. Sweet and Maxwell Publishing. Allen v Gulf Refining Ltd. [1981] AC 1001. Vancouver General Hospital v McDaniel (1934) 152 LT 56 Barnett v Kensington and Chelsea Hospital Management Committee [1969] 1 QB 428. Rigby v Hewitt (1859) 5 Ex. 240, at 243. Stewart v West African Terminals Ltd [1964] 2 Lloyd’s Rep 371 Sedleigh-Denfield v O’Callaghan (1872) 8 Ch App 8 Phelan v E. Cumbria HA [1991] 2 Med LR 419. Hussain v Lancaster CC [1999] 4 All ER 125 Hulley v Silversprings Bleaching Co [1922] 2 Ch. 281.

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Footnotes

[1] Brenner (1973) pp 403-4

[2] As Harlow (2005) p84 writes: “If landowners were entitled to protect the rural uses and amenities of their land through a tort of strict liability, progress, and particularly industrial progress, could be brought to a standstill.”

[3] 11 H.L.C. 642

[4] Lord Chancellor, Lord Westbury in St Helens Smelting Company v Tipping (1865) 11 H.L.C. 642, cited by Harlow (2005) p85

[5] Ibid.

[6] For example, what a resident would reasonably consider a private nuisance in Berkley Square (an highly residential and affluent area in Central London) may not be considered so for residents living in Bermondsey (an highly industrial area outside the centre of London). This was a point made by Lord Justice Thesiger in the case of Sturges v. Bridgeman (1879) 11 ChD 852 at 865. It was this reasoning that was controversially employed by Lord Denning in the case of Miller v Jackson [1977] QB 966, to argue that a claim of private nuisance brought by the neighbouring resident to a village cricket ground should be defeated; namely, that because he chose to move into a property that was adjacent to a cricket ground, he ought reasonably to have expected his property to be damaged by high-flying balls, from time to time. However, because the damage in question was material, the majority of the Court of Appeal felt bound to follow the decision handed down in the case of Bliss v Hall (1838) 4 Bing NC 183, in which it was held that coming to nuisance is no defence in cases which involve material damage, i.e. damage which exists to the same extent regardless of the claimant’s personal preferences and sensitivities. If the type of damage in the Miller case had been non-material discomfort, for example arising from the noise of the balls being struck, then Lord Denning’s reasoning would have been appropriate. For an example of a case where such reasoning was employed successfully to defeat a claim of private nuisance, see Southwark LBC v Mills [2001] 1 AC 1.

[7] Hunter v Canary Wharf [1997] 2 All ER 426

[8] See the analysis provided in footnote 6 in regard to the application of the principle espoused in the case of Bliss v Hall (1838) 4 Bing NC 183.

[9] (1845) 1 CB 828. As Winfield and Jolowicz (2002) p 534 write: “If damage were not presumed, it might be difficult to establish that any one act had caused it.” [10] [1951] 3 DLR 577. [11] See the dictum of Lord Lloyd in the Hunter case [1997] 2 All ER 426, at 442. [12] Allen v Gulf Refining Ltd. [1981] AC 1001. [13] As Winfield and Jolowicz (2002) p 141 note: “An occupier is under a duty… to take steps to remove a hazard on his land which threatens neighbouring property…” [14] Vancouver General Hospital v McDaniel (1934) 152 LT 56, at 57. [15] Barnett v Kensington and Chelsea Hospital Management Committee [1969] 1 QB 428. [16] Rigby v Hewitt (1859) 5 Ex. 240, at 243. [17] 2 Lloyd’s Rep 371, at 375 [18] (1845) 1 CB 828. As Winfield and Jolowicz (2002) p 534 write: “If damage were not presumed, it might be difficult to establish that any one act had caused it.” [19] [1951] 3 DLR 577. [20] We have presumed that Percy has a proprietary interest in his land, as per the decision in the case of Hunter v Canary Wharf [1997] 2 All ER 426. [21] Phelan v E. Cumbria HA [1991] 2 Med LR 419. [22] Winfield and Jolowicz (2002) p769 at 22.23 [23] Ibid. [24] Hussain v Lancaster CC [1999] 4 All ER 125 [25] (1872) 8 Ch App 8 [26] Hulley v Silversprings Bleaching Co [1922] 2 Ch. 281. [27] Allen v Gulf Refining Ltd. [1981] AC 1001

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