Inadmissible in court

Secondly, the fumes from the petrol substitute kill all the vegetation in the adjoining gardens, the neighbours complain; but Lucy says she is too poor and old to do anything about it. Aforementioned it was the malicious act of 3rd party that put Lucy in this predicament. She can use the strict liability defence of 'act of a stranger' to any claim brought against her by her neighbours under Rylands v Fletcher. Rickards v Lothian 10 suggests that Lucy wouldn't have any liability to her neighbours because the malicious act was the real cause of it escaping to their gardens.

However the other ground on which the claim failed in this case was that there was a natural use of land. Lucy's neighbours could argue that once they complained they had indefinitely made Lucy aware of the inventions existence, so once she knows about it and leaves it, it could be argued that she is operating an unnatural use with her land. Lucy explains her nonfeasance however by saying that she is too old and poor to do anything about it. The standard of care a person should take is an objective one so this explanation Lucy makes may be inadmissible in court.

Although in Walker v Northumberland County Council 11 Colman J stated (at p. 751) that the resources and facilities at the defendant's disposal had to be taken into account when considering the practicability of remedial measures. However the defendant in this case was a public authority. Finally, looking at issue four, a minor point that is raised first of all is that Max may have a claim against Lucy using either the tort of trespass to land or nuisance because the fumes from her land penetrate a gash in a tree which overhangs the highway in Max's possession.

The main part of the issue though, is concerned with the fact that two months later the branch falls onto the highway and damages Oliver's car, this is a public nuisance. The first question again is whether Max is aware of the damage to his tree; the only way this is likely though is if the properties of the gas are such that it has a very strong smell or is a visible colour, making detection easier for the reasonable man, but it will be difficult to find liability on this basis.

However it is likely that Max, as the average man, would not suspect damage of this nature had being done unto his tree because it is a latent defect that is undiscoverable by any reasonably careful inspection. So Max could not have foreseen the damage that is caused two months later. Noble v Harrison 12 strongly suggests that Max has no liability towards Oliver. British Rail Services v Slater 13 says that fault based liability should be used for natural structures. Therefore unless Max has been negligent, he has no liability.

In conclusion the following is advice that I would give each party: Firstly Ingrid would have to argue that she didn't authorise any nuisance because she didn't know of the experiments harmful effects and that any damage wasn't reasonably foreseeable just from the inventions nature itself (i. e. its flammability), or she could be held liable for the nuisance to Karl. Secondly Jane could litigate in tort for trespass to land to gain nominal damages for Karl breaking in to her flat, or she could prosecute in criminal law for the classification offence of burglary.

Thirdly, I would strongly advise Karl to take action against Jane under the Rylands v Fletcher rule for the discomfort in the form of headaches that he suffers. Fourthly, I would advise Lucy to either claim trespass to land against Karl or to prosecute in criminal law but for the classification offence of fly – tipping. Fifthly, I would advise Lucy's neighbours to think carefully about making any claim under Rylands v Fletcher against Lucy because she has a strong strict liability defence of 'act of stranger'.

Sixthly, Max would be advised that there is no point making a claim against Lucy for the damage to his tree for the same reason given above. Also even if he did make a claim and was successful damages would be so nominal it would not be worth the time. Seventhly, I would advise Oliver not to forward a claim against Max because previous case authority on premises abutting a highway means that Max has an almost water – tight defence. 

Bibliography

Howarth, D. R. and O' Sullivan J. A. (2000), Hepple, Howarth and Matthews' Tort: Cases and Materials, 5th Edition, London, Edinburgh, Dublin: Butterworths Martin, E. A. (2001), Oxford Dictionary of Law, 5th Edition, Oxford: Oxford University Press Martin, J. and Turner, C. (2001), Tort Key Facts, Hodder and Stoughton Rogers, W. V. H. (2002), Winfield and Jolowicz on Tort, 16th Edition, London: Sweet and Maxwell Rose, F. (2003), Blackstone's Statutes on Contract, Tort & Restitution 2003-2004, 14th Edition, Oxford: Oxford University Press Stychin, C. F. and Mulcahy, L. (2003), Legal Method: Text and Materials, 2nd Edition, London: Sweet and Maxwell.