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Tort is a legal wrongdoing that results in harm or injury to a person as a result of someone else's irrational actions. A person experiences harm or loss in this situation, whereas an individual experiences an injury when their legal rights are violated. Tort law seeks to protect an injured party from the consequences of another's harmful actions, to hold the responsible party accountable, and to deter future damage to others. (McMahon and Binchy, 2013). Tort law deals with personal wrongdoings and places more emphasis on compensating the sufferer than punishing the offender. Redress for damages is mainly in terms of financial compensation as well as restitution and injunction. The precise torts include; intentional, strict liability, negligence, and trespass. However, there are also distinct areas of tort law which include; assault of privacy, defamation, and nuisance.
Tort of Nuisance
Nuisance is an impediment to an individual's right to enjoy or use their land due to unreasonable and substantive interference from another person. An individual in legal ownership of a property is authorized to peacefully enjoy such property. If someone else inappropriate use in his property leads into an illegal meddling with the use or enjoyment of others property or of some right over, or in association with it, then the tort of nuisance arises (Shulman et al., 2015). Nuisance is different from trespass in that, trespass is a direct intrusion into someone's land without authorization, while nuisance is an injury incurred by an individual in the course of enjoyment of their land, due to unreasonable actions committed by another individual as they enjoy their property. Nuisance can either be public or private: public nuisance involves widespread insignificant offenses that threaten the well-being, convenience, comfort, safety or health of a community. Private nuisance involves meddling with an individual's use or enjoyment of their land.
To determine accountability of an alleged nuisance certain factors are analyzed. These factors are; fault implying that the accused recklessly, negligently or intentionally impeded the complainer's enjoyment or usage of land. It can also be that the accused continued with their unreasonable act even after knowing of definite harm or substantive hazard of future harm to the complainer's interest. Another factor is substantive interference must have been caused by the accused. To impose liability to the accused, the complainer must satisfactorily prove that the interference had substantial effects on their rights since the law knows no cure to minute issues. In cases of property, determining the extent of interference is easy, but in situations of a personal annoyance, discomfort or inconvenience it is more challenging. In such case, the jury applies the standard of an average person with normal temperament and sensitivity. Lastly, the reasonableness of the accused conduct is determined to gauge if the accused had installed any feasible mitigating strategy to contain the interference (Shulman et al., 2015).
In their defense, the accused may claim that particular legislation such as licensing or zoning laws permits certain activity. However, legislative authorization does not absolve an accused from liabilities if their actions were unreasonable. If there are others contributing to the harm, the accused will not escape liability even if his/her actions alone would not form nuisance; the liability will be allotted according to accused's portion of the blame. Lastly, the accused may claim that the complainer exposed themselves to the nuisance by moving onto land adjacent to an already existing place of interference. This argument may be considered to examine the reasonableness of the accused but the new owner should reasonably enjoy or use their land as anybody else. The argument may also have effects in the determination of damages if the accused is held liable since the purchase price that the complainer paid may have factored in the existing nuisance (McMahon and Binchy, 2013).
David v. Harrington & Nephew ltd Scenario
Although Harrington & Nephew ltd had the right to enjoy and use their land in ways they deemed suitable, it placed a duty on them to consider the welfare of neighbors so as not to infringe on their rights. It placed a duty on them to contain their processes and systems in order to emit pollution that was within the accepted range (Beever, 2013). However, production of excessive noise, emission of chemical smuts and dust amounted to nuisance to the neighbors, especially David's family. Even in absence of a regulatory framework, it was prudent for Harrington & Nephew ltd to first consider if their emissions would have adverse impacts on an average person with normal common sense and behaviors. Such exercise would have prevented the current situation the company is facing. The nuisance propagated by the company hindering David's family to enjoy the possession of their land can be categorized into two forms;
Injury to Property
Rose tree in David's garden died as a result of what a horticultural expert said was dust emitted by Harrington & Nephew ltd affecting the soil. This effect indicates that the company was emitting dangerous dust that had the capacity to contaminate the soil. If the contamination was strong enough to kill the rose tree, then it indicates that there is a high probability that David's land could not produce anything. Another instance of dangerous substances emitted by the factory was that the emissions were able to damage paintwork of Wally's car. If the company is allowed to continue this kind of reckless production, it means that the neighborhood would be inhabitable. To contain this situation, legal action should be instituted so as to compel the firm to produce reasonably (Beever, 2013).
If David would institute a lawsuit against Harrington & Nephew ltd for interfering with his right to enjoy and use his land, it is likely David will be awarded damages. For instance, in the case of St. Helen Smelting Co. v. Tipping whereby trees and shrubs in Tipping's garden were destroyed by fumes emitted from defendant's manufacturing work (Morrow, 2016, p.52). The court agreed that such damages being an injury to property gave rise to a cause of action and the smelting company was held liable for its substantive interference. As such, if Harrington &Nephew ltd is taken to court for causing an injury to Wally's car, Rose tree and contaminating David's land, it is likely that the company will be held liable.
Cases of physical discomfort caused by the unreasonable conduct of another person are challenging to prove since it is difficult to measure someone's annoyance, inconvenience or discomfort. As such, for an individual to claim damages resulting from an alleged nuisance they must first satisfy two essential conditions which include; in excess of the natural and usual way of usage of a property, complainer must have ownership or proprietary interests to such property in order to institute an action against the accused. Secondly, must prove that the nuisance materially interferes with the normal comfort of the human being such that average person in a similar location and environs cannot tolerate the interference. To determine the extent of discomfort, the mode of use of the property, locality, duration and its degree are considerable factors (Beever, 2013).
In the scenario of David v. Harrington & Nephew Ltd, the noise emanating from the factory was so intense that it could make David's family lose sleep throughout the night. This conduct deprived the family their fundamental right to enjoy their property in a peaceful environment (Beever, 2013). Also, the dust emitting from the production of pre-cast concrete units had adverse effects not only to David's land but also, to his wife who developed an allergy and had to rely on inhalers every day. Harrington and Co. practices caused a lot of discomfort to the Aimee who experience health complications. In addition, unfavorable living conditions experienced by David's family in their land resulting from the activities of the factory, it caused a lot of mental and health discomfort in the family. These kinds of discomforts amount to nuisance emanating from the unreasonable conduct of Harrington & Nephew Ltd.
In law, these unreasonable actions by Harrington amount to a nuisance and it can remedied by an injunction or/and monetary compensation. In Broadbent v. Imperial Gas Co. (1856), an injunction was issued preventing imperial gas from producing gas which could injure plaintiff's garden crops (Shulman et al., 2015). The noxious matter emitted by the company injured complainer's plants due to the close proximity of the firm to the garden. Consequently, Harrington & Nephew ltd could be issued with an injunction to stop emission of hazardous dust which is complicating the health of David's wife as well as rendering his land unproductive.
Defense Available to Harrington & Nephew Ltd
A company or an individual may commit a particular action that amounts to nuisance but finds legal protection against any liability. They can be protected either by statutory authority or right by prescription (McMahon and Binchy, 2013). Statutory authority is whereby a company or action is established by legislation. Such company or action will be protected against any liability initiated against them in form of nuisance. Right by prescription protects a company or an action that has been a nuisance for over twenty years. If the nuisance has been peaceful and responsively enjoyed as an easement and as of right without disruption for over twenty years, it is legalized ab initio. This time runs from the day when the nuisance began not from the day when the cause of nuisance began.
If the nuisance caused by the manufacturing activities in Harrington &Nephew factory had been running for over twenty years, the law tolerates such nuisance and deems it legal (McMahon and Binchy, 2013). As such, no individual can seek legal redress terming its nuisance as disturbing. Hence, David should first do some research about the background of the company in order to know whether the nuisance emanating from it, is legally recognized. However, if the nuisance has not been in the locality for a period of twenty years, then there is no defense available to Harrington & Nephew Ltd. It would incur all liabilities levied against it for its reckless actions that amounted to nuisance to its neighbors.
There are three types of remedy available to torts of nuisance; injunction, damages, and abatement. The injunction is whereby a company is stopped from carrying out any further activities that are amounting to nuisance. Damages is whereby an accused is ordered by the court to pay the injured a person a certain amount of money in compensation for discomfort or medical bills they incurred as a result of injury caused by the nuisance. Abatement, applicable under limited conditions is whereby the complainer removes the nuisance without turning out for a legal procedure. For instance, where a branch of tree belonging to the accused suspends over the premises of the plaintiff causing a nuisance to him, the plaintiff offers to cut the branch himself after notifying the accused. The law does not favor this kind of remedy and it is not advisable because the complainer may, in turn, be liable for unreasonable or unnecessary damages (Shulman et al., 2015).
The most applicable remedies to the scenario of David and Harrington & Nephew ltd may be; damages which are offered to the complainer. Damages could be; nominal damages offered to technically acknowledge that certain harms have been incurred by the complainer, or statutory damages are determined by the statute independent of the harm caused, or exemplary damages whose purpose is to deter the wrongdoer and others from committing such unreasonable act in future as opposed to compensating the injured party. The court may also order an injunction restricting, restraining, removing or stopping the accused from undertaking activities that cause a nuisance to others (Shulman et al., 2015).
Harrington & Nephew Ltd v. Wally
Wally caused injury to Harrington by wrongly interfering with possession rights of land to Harrington & Nephew Ltd. Even though Wally believed that he was wronged by the nuisance emanating from the factory, he erred in voluntarily trespassing company's land and causing damages to one of the offices. It can be argued that Wally did not personally break the window, but he caused the scuffle that left window broken. He could express his concerns appropriately. Thus, the company is at liberty to institute legal proceedings against Wally. If the case is instituted against the accused, Wally is likely to be found liable for damages he caused to the Harrington & Nephew Ltd. According to McMahon and Binchy, (2013), in trespass defenses such as jus tertii and justification by law are available, but in Wally's case, there is no defense available. The remedy can only be damages and injunction.
St. Helen Smelting Co. v. Tipping
Tipping owned a land that was close to a copper smelting company that had been operational for long. In the process of smelting, harmful gases and fumes were emitted which damaged the trees on the complainer's land. Tipping filed a lawsuit praying the court to rule whether the company had acquired the right to emit harmful gases and fumes from smelting through long usage and acquisition, and also whether the claimant voluntarily exposed himself because he "came to the nuisance". These issues were also involved in the scenario between David and Harrington & Nephew Ltd. According to Morrow (2016, p.52), the court held that the accused had not acquired the right to continue emitting harmful gases and fumes through prescription and it was no defense to state that the plaintiff 'came to the nuisance'. Whilst manufacturing pre-cast concrete units was lawful, the locality in which it was done did not expect nuisance.
Beever, A., 2013. The Law of Private Nuisance. Bloomsbury Publishing.
McMahon, B.M. and Binchy, W., 2013. Law of torts. Bloomsbury Professional.
Morrow, K., 2016. II. 3 The courts, nuisance and environmental pollution-a matter of will?. Decision Making in Environmental Law, p.52.
Shulman, H., James, F., Gray, O.S. and Gifford, D.G., 2015. Law of Torts: Cases and Materials. Foundation Press.
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