Folkestone Properties

In Tomlinson, the Lords found there was no difference in principle to one who trespasses at the outset and one who does something which he has not been given permission to do, having initially entered the premises as a visitor. This interesting potential alignment of an entrant's status demonstrates why, in many ways, the duty owed must be approached carefully as the status of a visitor may alter within the course of a visit and emphasises yet again that, frequently, it is the claimant's own conduct on the premises which causes the mischief.

In the earlier case of Donoghue v Folkestone Properties Ltd (14), the claimant was rendered tetraplegic having dived off a harbour wall despite the presence of warning notices. The 1984 Act was applicable. The claim failed as, although a warning was not prominently displayed where the claimant chose to dive, the test as to requisite knowledge was to be determined as at the time of the incident, so no duty was owed in the middle of winter and the middle of the night.

In Tomlinson, in which the case of Donoghue was repeatedly referenced, Lord Hoffman suggested that it would be extremely rare for an occupier of land to be under a duty to prevent people from taking risks which are inherent in the activities they freely choose to undertake upon the land (15). This seems to have driven decisions in subsequent cases: in Bourne Leisure Ltd v Marsden (16), the defendant camp-site owner was held not liable for a toddler's death who strayed from her parents and drowned in a scenic pond.

The child was a visitor to the site and clear warnings had been given as to the pond's presence and safe pathways were clearly marked on a site-plan. So returning to the question, it would be wrong to assume that no duty is owed to a trespasser. If the state of the premises is such that I may reasonably expect that the occupier should take reasonable steps to protect me from the known hazard, then a duty is owed. If I am a visitor, how in fundamental terms does that duty differ? (14) (2003) EWCA civ 231,

(15) at para 45 (16)(2009) EWCA civ 671 The wording of both Acts, as noted, is couched in terms of reasonableness and so the occupier must at a minimum take reasonable steps to secure my safety if a hazard exists. However, in neither situation am I guaranteed of safety and that is emphasised by the Court's approach: "The pursuit of an unrestrained culture of blame and compensation has many evil consequences and one is certainly the interference with the liberty of the citizen" (17)

That may be overlooked in our risk-averse litigation culture, which is so often criticised, but the present trend in cases highlight not so much concern over an increase in occupiers' culpable breaches of duty, but more the culpability of the claimant, in whatever capacity, by their actions upon the premises. (17) Lord Hoffman in Tomlinson at para 81 Word Count 1511 Question 1(b) follows below Question 1b Clare is the owner-occupier of Red Cottage, which is situated in a mainly residential district, close to a major railway line.

Daniel, the owner of adjoining land, is carrying out construction works on his land and, for this purpose, has recently placed a tower crane on his land. Daniel's ground is unstable and he needs to drive piles into the ground in order to provide a secure foundation for his new building. Daniel expects to complete these pile driving operations in six weeks' time. Clare complains of the following: (i) Her sleep is being disturbed by the noise from Daniel's pile driving operations, which are often carried on late into the night.

(ii) The boom of Daniel's tower crane regularly invades the airspace above the garden of Red Cottage. Whilst this does not cause or threaten any interference with Clare's enjoyment of her property, she is not prepared to put up with what she considers to be an invasion of her rights as landowner. (iii) When completed, Daniel's new building will obstruct the beautiful view from Red Cottage over the nearby Clettan hills. Advise Clare as to her rights and remedies (if any) in tort in respect of each of her above complaints.

(Word limit 1500 words) The tort of private nuisance flows from: "an act or omission whereby a person is annoyed or disturbed in the enjoyment of land whether by physical damage or by interference with their ownership, occupation and enjoyment of land". (1) (1) R F V Heuston and R A Buckley, Salmond and Heuston on the Law of Torts , Sweet & Maxwell; 21st Revised edition 1996 The defining feature is that the use and enjoyment of the land has been interfered with and it is closely linked to the law of property.

Its basis is longstanding as a principle of law: " a man must not make such use of his property as unreasonably and unnecessarily to cause inconvenient to his neighbour" Aldred's case (2). However, this is not strictly true as a balance must be struck by the entitlement for everyone to use and enjoy their own land so that, if use is ordinary and reasonable, there should be no liability upon the defendant. In the case at hand, Daniels has embarked upon activity on his land, which is of some duration, which may be said to border upon non-ordinary and unreasonable.

The nuisance must be a continuing wrong and not a single incident. However, even intermittent noises or incidents may be actionable Rapier v London Tramways Co (3). On the facts, the pile driving operations are continuing throughout the day and into the night and may continue for six weeks. In De Keyser's Royal Hotel v Spicer Bros Ltd (4), noisy pile driving at night during temporary building works was held to be a private nuisance which appears to be on a par with the facts of this case.

Although there is no suggestion of physical damage to Clare's property, her enjoyment of her own property has been impaired and, through disturbed sleep, she is suffering personal discomfort, sufficient to warrant action being taken: Shelfer v City of London Electric Lighting Co (5) and Metroplitan Properties Ltd v Jones (6) (The overall environment will be taken into account. In Sturges v Bridgman (it was said that: "What would be a nuisance in Belgravia Square would not necessarily be so in Bermondsey. " (7).