Effectiveness In Protecting Interests In Land

Introduction

There are certain torts that specifically protect interests in land. Negligence protects interests in land against damage or loss caused by carelessness. The tort of nuisance protects interests in land against interference with the rights to enjoy the land by the person who has proprietary interests in the land. The rule in Rylands v Fletcher protects against loss caused by escape of something that amounts to non-natural user of neighbouring land. Occupier’s liability protects interests in land for three classes of entrants on to the land: those who are in the land with permission (visitors); those who are in the land due to legal right to be on the land; and those who are in the land without permission or legal right to enter (trespassers). In this essay, a critical and comparative analysis is done of torts protecting land, being occupiers’ liability, nuisance and the rule in Rylands v Fletcher on one hand with the tort of negligence on the other. This essay critically evaluates the importance of the torts of occupiers liability, nuisance and rule in Rylands v Fletcher and distinguishes these from negligence. The essay analyses the differences between these torts to explain their effectiveness in protecting interests in land.

Occupiers liability

Occupiers liability relates to the liability of owners or occupiers of real property. The relevant laws are the Occupiers Liability Act of 1957 and 1984. The Occupiers Liability Act 1957 recognises a “common duty of care” to all visitors by the occupier of premises. Interestingly, the duty under the Occupiers Liability Act 1957 is stated in terms similar to negligence as both are based on duty of care. Occupiers liability is applied to a person who has the legal right of control over the property where the person is responsible to do something about the dangerous state of the premises or the activities carried out there. In Wheat v E Lacon & Co Ltd, the court held that the owner of the flat (although some one else was the occupant) was liable for the fall of a guest down an unlit defective staircase. Therefore, the application of the occupiers’ liability principle emphasises on the legal right of control rather than actual control of the premises. In other words, the liability of the occupier will extend to those who have the legal right of occupation as in the case of Wheat v E Lacon.

The commonality between occupiers liability and the tort of negligence is that both are premised on the duty of care of the defendant towards the claimants. Under the occupier liability tort, the common duty of care is specifically linked to the occupation of the premises or the legal right of occupation of the premises. Therefore, it is a very specific kind of negligence which applies only with respect of breach of duty of care of the occupier to take such care as is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted into the premises. Therefore, apart from this distinction (which is that occupiers liability only pertains to a specific condition), there are similarities between negligence and occupiers liability as both are based on the principles of negligence, which includes, duty of care, breach of duty, causation and damage to the claimant. This is demonstrated by Simms v Leigh Rugby Football Club Ltd, in which case the court held that the occupier was not liable for the loss caused to the claimant which was not foreseeable. Thus, foreseeability of the loss caused by the action or omission of the defendant is common to both negligence and occupiers liability.

The issue where occupiers liability can be distinguished from negligence is with respect to the liability of the occupier to the trespassers in the property. Prior to the British Railway Board case the general position in occupiers liability was that the occupier owes no duty to trespassers unless the occupier recklessly injures a trespasser known to be present in the premises; this position changed in British Railway Board as the court held that a common duty of humanity was owed to the trespassers as well. The Occupiers Liability Act 1984 has accepted this duty to trespassers, although the standard of care is much less as compared to the standard of care owed to visitors. Therefore, the occupier would be liable to trespassers in certain cases even though he could not foresee that there would be trespassers on the land.

An area where the occupiers liability falls short in protecting the interests with those on the land is where the occupier does not occupy the premises but has legal right of control over the premises and the actual occupier suffers a loss. This is illustrated by Rimmer v Liverpool City Council, in which case the claimant was a tenant in the council flat and he had complained of a dangerous panel of breakable glass, which was a danger to his young son. The council had legal right to control the property and they denied to change the installation on the ground that it was a standard installation. Later, the claimant’s son injured himself when he put his hand through the glass. The court held the council liable in negligence but could not fix liability under occupiers liability law. This indicates that in some situations, the claimants would have to rely on negligence law and not on occupiers liability law. Specifically, with respect to landlords, occupiers liability does not provide remedies in such situations and the law of negligence is to be used for claiming action against the landlord who has either created the danger as in Rimmer, or who has a statutory duty to repair the premises and he has negligently failed to do so.

Nuisance

Nuisance is the breach of legal duty due to interference with the use of land or property by the claimant. Private nuisance is specifically related to the protection of right of enjoyment in property. An example can be seen in Miller v Jackson, wherein the claimants claimed that cricket balls from matches organised by the defendant often landed in their garden and caused damage to their house; the court allowed the action and awarded damages. Even the defence of ‘coming into the nuisance’ (matches had been organised for many years in the same locality) was not allowed. Indeed, the courts have protected the interests in land of those who may have come to the property after the nuisance started as is illustrated by Lawrence v Fen Tigers decided by the Supreme Court. In this case, the defendants bought a property close to a stadium which conducts motor races and then claimed nuisance. The court rejected the defence of coming into nuisance with Lord Neuberger noting that defence of coming to the nuisance must fail “where the claimant in nuisance uses her property for essentially the same purpose as that for which is has been used by her predecessors.”

Nuisance is different from negligence in that usually the liability in private nuisance is “strict” in nature as compared to the liability in negligence, which requires the claimant to prove fault of the defendant. The consequence is that where the claimant claims nuisance from a defendant’s land but the defendant pleads that he was not at fault even though his actions amount to nuisance, the court can still hold the defendant liable. In Leakey v National Trust, the claimant sued the defendant for a mound of earth on the defendant’s land that collapsed onto the claimant’s land due to a natural disaster. The defendant claimed that they were not at fault because the collapse was caused due to natural disaster. However, the court held that the defendants were in a position to anticipate that something like this can happen and unreasonably did nothing about it, making them liable. Therefore, as per the rule in Leakey v National Trust, a defendant landowner can be made liable for nuisance caused by natural causes if they knew, or ought to have known of the danger and still failed to take reasonable steps to bring the nuisance to an end or to abate its effects. It may be noted here that even if the court had applied the rule in Rylands v Fletcher, the same result may have followed because the facts show a non-natural use of land.

A limitation of the law of nuisance in protecting interests in property is that it is applicable only to those claimants who have a right to the property against which nuisance is claimed. As noted by Lord Goff “nuisance is properly applied only to such actionable user of land as interferes with the enjoyment by the plaintiff of rights in land.” This was demonstrated in Hunter v Canary Wharf. In that case, the claimants claimed nuisance due to the construction of One Canada Square, which caused interference with the television signal. The House of Lords unanimously rejected the claimant’s action under nuisance on the ground that actions in private nuisance could not be claimed by those who did not have a right to the property. This effectively means that the claimants under nuisance should have either proprietary or possessory interest in the land. This is a position taken earlier by the Court of Appeal in Malone v Laskey, and contrary to the position taken in Khorasandjian v Bush. In Khorasandjian, the Court of Appeal held that a person in domestic occupation of her parents’ house can take private nuisance action. Therefore, as per Hunter position, those in occupation of property but without an actual proprietary or possessory right to the property would not be able to get an action in nuisance. The problem with this approach is that nuisance law then becomes restrictive and does not consider the full range of rights an occupier has in the land irrespective of the right in the property or the absence of such right.

Rule in Rylands v Fletcher

In Rylands v Fletcher, the court laid down the principle of strict liability. This principle was developed in response to the problem that was seen in the facts of the case, which is whether and how a landowner can be made liable for the loss and damage caused to the land of his neighbour during the course of non-natural use of land when something escapes from the land. At the time when the rule in Rylands was propounded, the nature of this liability was an innovation because the existing torts at the time did not subsume this liability. Trespass would not have allowed the court to give the remedy to the claimant because the flooding caused by reservoir burst was not direct and immediate. Nuisance was also not applicable because the offending act was not continuous and recurrent in nature. Negligence at that time was also not applicable because the act of independent contractor was not within the scope of liability. The tort of strict liability that was innovated in Rylands is different from the general principle of negligence in how these two protect interests in land. It is also different from the tort of nuisance. Therefore, the rule in Rylands v Fletcher is a separate category of tort, which has been allowed to develop independently and it serves a specific purpose in protecting the interests in land, which cannot be served by the tort of negligence. Although in Read v Lyons, the House of Lords denied the separate existence of the Rylands rule, in another more recent case, the it refused to revoke the independent existence of the rule in Rylands v Fletcher and refused to assimilate the rule within the tort of negligence. This indicates that there is judicial consensus in considering the rule in Rylands v Fletcher to have independent existence. It may be noted here that the difference between the rule in Rylands v Fletcher and the negligence law is that the former is based on the principle of strict liability, which does not require proof of negligence of the defendant whereas the latter is premised on the concept of fault or careless behaviour of the defendant.

The rule in Rylands v Fletcher provides that non-natural use of land with something that may lead to mischief if it escapes from the land, would create a liability for the damage caused to the land of another person. Although there has been significant development of the tort of negligence since the Donoghue judgment, there are still areas relevant to the protection of the interests in land that can only be answered by the rule in Rylands v Fletcher. One such area is the damage caused to the land or property of another from fire, where the court has used the rule in Rylands v Fletcher as well as the principles of negligence law as exemplified by the decision in LMS International Ltd. v Styrene Packaging & Insulation Ltd. In that case, the court was able to apply the rule in Rylands v Fletcher on the basis of the defendant’s actions in accumulating a dangerous thing and flammable thing on their land for non-natural use of the land, thus increasing the risk of starting a fire which could escape to the neighbouring property. This case demonstrates why the rule in Rylands v Fletcher continues to be useful in protecting interests in land and ought to continue developing as an independent rule.

The particular benefits of the rule in Rylands v Fletcher are that the rule does not require that the claimant should have a proprietary interest in land (nuisance requires proprietary interest); the emphasis for the application of the rule is on the land belonging to the defendant; and it derives from the non-natural user of land as seen in the Rylands rule. These allow the courts to consider a variety of cases that may be outside the scope of negligence law. The application of the rule in Rylands provides claimants with additional legal weaponry for actions where negligence will fail to provide relief. This is illustrated by the decision in LMS International Ltd. v Styrene Packaging. However, in another case where the facts involved an alleged loss felt by a claimant due to a leak of water from the defendant’s land, the court refused to apply the rule in Rylands v Fletcher saying that the claim did not fall within the scope of Rylands principle. In this case, the defendant council was held not liable because the council’s use of the land for the purpose of delivering water to the housing estate was not considered by the court to be a non-natural use of land. Despite the decision not supporting the claimant’s action in rule of Rylands v Fletcher, this case demonstrates how the rule continues to be relevant in protecting interests in land beyond what can be protected by negligence law because if the land is used for a non-natural use, then the defendant’s own conduct becomes irrelevant to fixing liability. Under negligence law, the court will focus on the conduct and behaviour of the defendant. The link between the fault or the careless behaviour of the defendant and the loss caused to the claimant would determine the liability of the defendant through the application of causation. However, in cases where the defendant was not at fault but had used his land for a non-natural purpose, the courts would be able to remedy the loss caused to the claimant under the principles of strict liability.

Conclusion

The torts of negligence, nuisance, occupier’s liability and the rule in Rylands v Fletcher serve different purposes in protecting the interests in the land. In some ways they each provide relief where the others fall short. Occupiers liability falls short in protecting the interests where the occupier does not occupy the premises but has legal right of control over the premises and the actual occupier suffers a loss as illustrated by Rimmer v Liverpool City Council. However, negligence law can provide the relief to plaintiffs in such cases. Therefore, in some situations, the claimants would have to rely on negligence law and not on occupiers liability law. Nuisance provides a liability which is “strict” in nature as compared to the fault based liability in negligence, so that the claimant may get relief in nuisance even where the defendant was not at fault but did interfere with the claimant’s right to enjoy property. However, a limitation of the law of nuisance in protecting interests in property is that it is applicable only to those claimants who have a right to the property against which nuisance is claimed. The Rylands v Fletcher rule does not require that the claimant should have a proprietary interest in land as is required by nuisance; rather it is related to the loss caused through the non-natural user of land by the defendant. These allow the courts to consider a variety of cases that may be outside the scope of negligence law. Rylands v Fletcher continues to be relevant in protecting interests in land beyond what can be protected by negligence law because if the land is used for a non-natural use, then the defendant’s own conduct becomes irrelevant to fixing liability. Under negligence law, the court will focus on the conduct and behaviour of the defendant.

To conclude, these different torts relate to the protection of the interests in land and they each serve a purpose in protection of such rights. There are significant differences in how these torts operate and in their scope of application. For the claimants, the benefit of having these different torts in the common law and statutory law (for occupiers liability) means that if the cause of action does not fall within one, it may fall within the other. The result is that there is greater effectiveness in tort law to respond to the different kinds of ways in which the interests in land may be affected by different kinds of tortious actions.

Cases

British Railways Board v Herrington [1972] AC 877 HL.
Harris v Birkenhead Corpn [1976] 1 WLR 279 CA.
Hunter v Canary Wharf [1997] UKHL 14.
Khorasandjian v Bush [1993] QB 727.
Lawrence v Fen Tigers [2014] UKSC 13.
Leakey v National Trust [1980] QB 485 CA.
LMS International Ltd. v Styrene Packaging & Insulation Ltd [2006] BLR 50.
Malone v Laskey [1907] 2 KB 141.
Miller v Jackson [1977] QB 966 CA.
Read v Lyons [1947] AC 156.Rimmer V Liverpool City Council [1984] 1All ER 930 CA.
Rylands v Fletcher [1868] UKHL 1.
Simms v Leigh Rugby Football Club Ltd [1969] 2 All ER 923.
Tansco plc v Stockport Metropolitan Borough Council [2004] 2 AC 1.

Books

Deakin SF, Johnston A, Markesinis B, Markesinis and Deakin's Tort Law (Oxford: Oxford University Press 2012).

Journals

Murphy J, ‘The merits of Rylands v Fletcher’ (2004) Oxford Journal of Legal Studies 643.
Nolan D, ‘The distinctiveness of Rylands v Fletcher’ (2005) 121 Law Quarterly Review 421.