Private Nuisance Question

debut IN ARTS LAW OF TORT ASSIGNMENT On the facts, the claimant Garfield suffered preposterous panes of glass in his green family and sustains a fractured skull when he is wee-wee on the head by a play evening gown. The local cricket club owner( defendant) may encounter an action bought by Garfield(claimant) under the tort of default or c layestine pain in the neck. The author will first debate on negligence and then later on to private nuisance. In the novel parapraxiss where the existence of a legal duty is less obvious, the Caparo v Dickman test must be satisfied.As it was reasonably foreseeable that claimant would be injured, in that location was suitable proximity and it is fair,just and reasonable to impose liability on the defendant. so it is arguable that the local cricket club owed Garfield duty of trade as the first element under negligence can be proven. The abet element which Garfield down to prove is whether the defendant falling step to the fore t he duty of care. To breach the legal duty of care,is to fall below the appropriate standard of care expected of the defendant when performing the act in question.In the case of Bolton v Stone,it was held that if the likeliness of harm caused by defendant was low then the likelihood of the defendant breaching of the standard of care would also be low. However,base on the facts the claimant raise is built so close to the ground that it is almost inevitable that the ball would be germinate over the fence and into the tends house from time to time. Thus the likelihood of harm is great,creating a high lay on the line of suffering to the claimant and the standard of care expected of the defendant would be higher.However,by referring plump for to the facts,since a 3 metre fence is erected it would be to be sufficient to prevent injury or loss as the jurisprudence does non expect the defendant to take absolute precautions(Fardon v Hercourt & Ravington). Thus Garfields action to b ring the case under the tort of negligence would in all likelihood fail. Garfield will then be best advised to bring the case in private nuisance. Private nuisance is the special equipment casualty to those who have a landed interest whose enjoyment of it is in round bearing diminished.On our facts,Garfield bought the house which we can assume that he is the owner of the house who have proprietary interest or exclusive interest in the land(Hunter v Canary Wharf). Thus he may sue the defendant for private nuisance and probably seek for an injunction. One should be noned that the honor of private nuisance has attempt to preserve a balance betwixt ii conflicting interests,that of one occupier in using his land that he thinks fit and that of his neighbour in the quiet enjoyment of his land(Sedleigh Denfield v OCallaghan).By doing this,the courts will look into the anaesthetize of reasonableness. In separate words the courts will assess the reasonableness(level of interference) by taking into account some factors such as locality,duration,sensitivity and public goods. With regards to locality,it was clear that the claimant had suffered physical damage and damage to his property. Thus the issue of locality is irrelevant(St. Helens Smelting Co. v Tipping). By referring to a connatural case, Miller v Jackson,the claimants had bought a house just next to the cricket ground and the claimants knew about it.The cricket ball kept sailing over the claimants house and they sought an injunction. At the mean time,the defendant erected a highest possible wire fence,install unbreakable glass and cover the claimants garden with safety net and ask the batsmen to keep the ball lowthe claimants were not content and seek further for damages and injunction later on quin more balls flew in their house in 1975. The court rejected the injunction as Lord Denning said that the claimant has come with open eyes.Base on our facts,it is highly unlikely that the claimant is unawar e of the existence of the ground as it has been played for most 100 years. Therefore,since Garfield had come with open eyes it may not be actionable as it is already a pre-existing condition at the time of the agreement. (Southwark London Borough Council v Mills) Then,with regard to the issue of duration and unsafeness,the law states that the longer the interference goes on the more likely it is to be unreasonable. However,a nuisance need not necessarily last long.If the time to carry out the activities are unreasonable or the degree of seriousness is high it could close up amount to nuisance(Crown River Cruise Ltd v Kimbolton Fireworks Ltd). Coming back to the facts,after the incident having two cricket balls smashed the glass in his greenhouse,the next hit was fewer weeks later which caused Garfield to sustain fractured skull. Thus it may not seem to be unreasonable as the next hit was a few weeks after the first hit. But,having a fractured skull after being hit maybe serious and the court might consider it as a factor to issue the injunction.However,it is arguable on the basis of sensitivity if the force use for the hit was not too excessive or unreasonable and if Garfield have had injury on the head before the hit then the defendant may not be held nuisance. (Robinson v Kilvert) If the nuisance is established,the defendant will tense to raise the possible defence which is prescription drug since the cricket has been played on the ground for nearly a hundred years. However the defence of prescription would only applicable if the claimant have beared with the nuisance for twenty years and not when the defendants started the activities(Sturges v Bridgman).Thus the defence may succeed if the defendant have moved in and beared with the nuisance for twenty years or more. The defendant would also raise the issue of public interest. The court would ineluctably concerned to some extent with the utility or general benefit to the community of defendants activit ies. This means if the claimants actions is of importance, the risks that may happen when complemental these actions may be demandable(Watt v Hertfordshire).However,the court will not accept the argument that the claimant should put up with the harm because it is beneficial to the community as a whole(Bellow v Cement co. ). If Garfield purpose of suing is to restrict the nuisance,the only let off that he can sought against the cricket club is a preventative injunction. It is an equitable remedy use to put a stop to accredited offensive activities that affect the claimant continuosly and it will only be awarded if the court felt up that it is necessarily to. If the nuisance is temporary and occasionally an injunction may not be issued.In conclusion,eventhough Garfield did experience private nuisance,the activities carried out by the defendant seem to be reasonable. Unless Garfield can prove that the degree of seriousness caused by the defendant is unreasonable,the defendant wou ld probably not be liable. Furthermore if Garfield wants to claim fee for the fractured skull he have to bring the case under the tort of negligence as nuisance claims are limited to loss of enjoyment of land. However,as mentioned foregoing that breach of duty could not be proved therefore the defendant would probably not be liable.