The Law of Torts

Harrington & Nephew Ltd. do have a case for trespass against Wally but it would not be in their best interest to pursue that case as David and his family have a much stronger case for trespass and private nuisance against Harrington & Nephew Ltd. Although it could be argued that the family willingly moved across the street from a factory knowing the risks involved in that move, that argument would not hold up in this instance. The problem that David and his family are having did not arise until after Harrington & Nephew Ltd. received the new contracts that have resulted in their extended hours of operation.

Wally did wrongfully trespass on company property and the window that was broken during his “visit” is proof of damages, but these things should not be pursued. The family has a case against Harrington & Nephew Ltd. that could result in an unprecedented damages. The family exercised a reasonable amount of tolerance upon moving into the area, but what is now being asked of them is beyond reason. Description of Facts David and his family moved onto Highfield Road in the Edwards Industrial Estate with the assumed risk that there would be some reasonable amount of discomfort involved with living across from a factory.

However, the nuisance did not present itself until the awarding of new contracts to the firm and quickly became unreasonable. The facts of the complaint are as follows: • The family has repeatedly lost sleep due to the factory’s new night hours • Aimee, David’s wife has developed a severe allergy to the dust and is forced to use an inhaler on a daily basis • The soil has been adversely affected and resulted in the death of a rose bush • The family is unable to enjoy outside activities on their property because of the dust and noise coming from the factory

• Wally’s car is often covered in dust that has resulted in his paint job being damaged as a result of chemical emissions being released from the factory Standing for a Case of Private Nuisance Against Harrington & Nephew Ltd. The following elements are present in determining a case for private nuisance against Harrington & Nephew Ltd. : • The factories increased operating hours and the added work which it is performing as of recent has resulted in an unreasonable interference with the way that David and his family enjoy their property

• There has been a great deal of damage to the family’s property, including: o The soil on the family’s property o The paint job on Wally’s car • The nuisance in this case is obviously the dust because it is most often the cause of the family’s inability to enjoy their land • The nuisance began when Harrington & Nephew Ltd. received the new contracts and has since persisted on a daily basis • There is no evidence that the firm has practiced reasonable care in preventing undue annoyance, but there is no duty of care involved in such cases

Standing for a Trespass Case Against Harrington & Nephew Ltd. The argument for trespass in this instance is quite tricky because the act of trespass does include air space and subsoil invasion which has occurred as a result of the dust, but trespass should also involve some unjustifiable interference with the possession of land, which means that the emissions of the factory would have to be unjustified in preventing David and his family from enjoying their property, which is not the case in this instance.

The presence of the factory is creating some issue with the enjoyment of lands on the part of David and his family, but under the precedent set in St Helen’s Smelting Co v Tipping the interference is justified considering the factory’s contribution to the neighboring economy. Under the rule of Rylands v Fletcher, Harrington & Nephew Ltd. would be responsible for damages regardless to the lack of culpability because they have strict liability for the events that have occurred as a direct result of their firms operation.

Defenses Harrington & Nephew Ltd. does have a defense in the nuisance case. As there is no duty of care required or present in such cases, there is no statute that dictates that the factory must practice any level of reasonable care in the performing of its duties, even though it may be understood that the execution of their duties could be harmful for those residing in the area of their facility.

They are presenting a nuisance but the nuisance is unavoidable as it relates to the functioning of the business and there are no statutes or regulations in place that would force the company to practice any duty of care in performing their required acts. Consideration of location is vital when considering the presence of a nuisance because it directly determines the probable level of enjoyment and comfort that can be sustained in that location, and with the family having moved into an industrial estate, they had to have known that a great amount of discomfort would be involved.

There were no guarantees made that the factory would enact “9-5 working hours” or that there would be no emissions of various dusts or gases into the atmosphere surrounding the factory. The emissions are unintentional but present nonetheless. So the argument here is not whether or not there are emissions from the factory, but whether or not the factory’s emissions present a grave nuisance to David and his family as well as whether or not trespassing on the part of Harrington & Nephew Ltd.

has occurred or is occurring. We have already determined that trespassing and the destruction of private property during the committing of an unlawful act, are present on the part of the family from Wally’s barging into the factory office, but the case now must be proven/presented against the firm in question. Rylands v Fletcher It can be determined that if the noise and dust escaped that it would create some, however limited, degree of mischief to those in the surrounding area. The Harrington & Nephew Ltd.

use of the land is natural in this instance which would work out in the company’s best interest, but there have been other factors: • Although loss of enjoyment is not grounds for the awarding of damages in this instance, the surrounding land has been effected and that is cause for the recovery of damages • The operation of a concrete factory could be considered harmless, but the emission of the dusts and gases by the concrete factory has caused a great deal of trouble in its escape, since the gases and dust have already escaped, Harrington & Nephew Ltd.

are responsible for the damage St Helen’s Smelting Co v Tipping In this case the defendant was liable for the damages done although they were done in the execution of the duties of a business, but the difference here is that the factory was built inside the town, the town was not populated with the factory’s presence already established, which is the case with David’s family and the Harrington & Nephew Ltd. factory A precedent was set nonetheless stating that: “It [is] necessary to distinguish nuisances damaging land, and those alleging personal injury or discomfort.

In the latter case the character of the neighbourhood is relevant, but not in the former. There is no right to discharge such fumes over neighbouring land. “My Lords, in matters of this description it appears to me that it is a very desirable thing to mark the difference between an action brought for a nuisance upon the ground that the alleged nuisance produces material injury to the property, and an action brought for a nuisance on the ground that the thing alleged to be a nuisance is productive of sensible personal discomfort.

With regard to the latter, namely the personal inconvenience and interference with one’s enjoyment, one’s quiet, one’s personal freedom, anything that discomposes or injuriously affects the senses or the nerves, whether that may or may not be denominated a nuisance, must undoubtedly depend greatly on the circumstances of the place where the thing complained of actually occurs.

If a man lives in a town, it is necessary that he should subject himself to the consequences of those operations of trade which may be carried on in his immediate locality, which are actually necessary for trade and commerce, and for the benefit of the inhabitants of the town and of the public at large. ” “(Swarb) In which case, St Helen’s Smelting Co v Tipping stands as a defense in our situation.

It is obvious that Harrington & Nephew Ltd. is present for the purpose of commerce and is important to the economy surrounding Edwards Industry Estate because no other family has set forth any issue with the firm, yet David and his family are not the only family in the area and thus are not the only ones effected by the presence of the factory. Geddis v Proprietors of Bann Reservoir

In this case the plaintiff suffered “a private loss for the public benefit”, with the Court stating that, “it is now thoroughly well established that no action will lie for doing that which the legislature has authorised, if it be done without negligence, although it does occasion damage to anyone” (Swarb) and we have already previously established the fact that the presence of this factory is vital to the economic state of the surrounding area, so the rule set forth in this case serves as a defense as well. Recommendations My suggestion to Harrington & Nephew Ltd.

would be to not pursue a trespassing case against Wally or to seek compensation or damages for repair of the window. Although the firm does have the right to operate in the area I would suggest some friendly neighboring before things start to get out of hand because although they do have a right to be present in the area and to operate their facility, a judge is still likely to award damages to David’s family for the angst they have suffered. At present, the family is just bothered by the nuisance, they are not yet to a point of seeking legal remedy.

I would suggest that the issue be resolved before they reach that point. It will likely save Harrington & Nephew a great deal of money in the long run. My advice is that Harrington & Nephew Ltd. approach David and his family with the following offer: • A settlement to be agreed upon by all parties involved should be reached to provide a monetary amount to the family for Aimee’s medical condition. Having developed a severe allergy to the dust and needing to use an inhaler daily could prove expensive and she should be compensated in some way for that.

• The damage to Wally’s car should be repaired with the damages to the Harrington & Nephew Ltd. office window being deducted from the cost of the repairs • It may also be agreed upon that all current contracts with their attached obligations will be fulfilled, but following the execution of current contracts that the factory will in some way attempt to better accommodate the neighboring community. o This could be accomplished by cutting the hours of the facility such that it would not be in operation all night long, allowing the community to find rest in late hours – this would also decrease the dust released into the air

o The company could attempt some sort of alteration of its operating schedule that would allow families in the neighborhood to engage in outdoor activities in months that the weather permits. There is no doubt that these things could serve as an inconvenience to Harrington & Nephew Ltd. business operations, but it will likely save them a great deal of money in the long run. Works Cited Bigelow, Melville Madison. “The Law of Torts”. Cambridge University Press (1903). Swarb Database on Nuisance Case Law 1849-1899. http://www. swarb. co. uk/lisc/Nuisn18491899. php