Terms in this set (242)

- The case of Van Colle v Chief Constable of Hertfordshire looks at the relationship between the tort of negligence and the Human Rights Act 1998 as there was an underlying problem held by those like Lord Bingham
if the police are alerted to a threat that D may kill or inflict violence onto V, and the police take no action against the occurrence and D does kill or inflict violence onto V can V or his relatives redress against the police and if so in what circumstances??
- Colle was shot dead by Daniel Bourgham shortly before he was due to give evidence for the prosecution of Brougham's trial on charges of theft - B in the weeks leading up to the trial had gone to his witnesses and tried to dissuade them from giving evidence, over the same period incidents of fire damage to the witness' property had happend, some incidents had been reported to the police and a very threatening phone call which B, there was no action to protect Van Colle
- Colle's parents brought an action under the HRA art 2 (the right to life) against the police and a occurrent claim of negligence was considered by the High Court but this was rejected by CA who stuck by the Hill principle
The CA finding of liability under the HRA was challenged in the HL
In dismissing the appeal the Lordships held the principle applied in Osman V United Kingdom that art 2 in appropriate cases took positive steps towards protecting individuals whose life were at risk from criminal actions however, it was held in Osman that the threshold for state liability is high. "The authorities knew or ought to have known at the time of existence of a real and immediate risk to the life of an identified individual"
The Lordships on the basis of of Van Colle argued that Bourgham's criminal record was that of petty theft and not extreme violence. In these circumstances it would have been unrealistic for the police to preclude that there was a real and immediate risk to Van Colle's life
- Smith v Chief Constable of Sussex - in this case a claim was brought forward in common law. The C Smith reported to the police that he had received persistent and threatening telephone, text and internet messages from his former partner Gareth Jeffrey, following the break up of their relationship. Even death threats like "I am looking to kill you no compromises. The police declined to look at or record the messages and took no statement from Smith and completed no crime form. Jeffrey attacked Smith with a claw hammer in such a way that Smith had been killed it would have been a clear case for murder. The HOL refused to impose liability as the concept established in Hill operated in the interests of the whole community, by ensuring that police resources were well-used. It should not therefore be abandoned even in extreme cases such as this where it might produce injustice for the individual claimant. However, Lord Brown noted that "the apparent strength if this case might have brought within the Osman principle so as to make a Human Rights Act claim here irresistible" - it could be said that this somewhat weakens the the Hill principle
The combined result of the Van Colle case and the Smith case was...
the police continue ti be protected from negligence claims arising from the performance of their general functions of investigating and preventing crime
In appropriate cases, art 2 of human rights claims may be brought instead but these will only be successful if that claimant can satisfy the stringent test for liability set out in Osman
- The CA decision in AB v South West Water Services imposed on further restriction on punitive damages: they should be awarded for torts which had received punitive awards at the time of Rookes V Banard. If no such case has been reported, then no award would be given. This excluded punitive damages for torts such as negligence, public nuisance, deceit and for sex and race discrimination
- This received a lot of criticism, the HL in Kuddus v Chief Constable of Leicestershire Constabulary finally overturned this "arbitrary and irrational restriction, in future the courts would examine he facts of the case and not be deflected by the C's cause of action
- It is an ongoing question of whether punitive damages should continue to be part of English Law
- The Law Commission felt that they still played a valuable role and that they should be available for all torts of equitable wrongs (but not for breach of contract) where the D, in committing the tort or by his or her subsequent conduct, has deliberately and outrageously disregarded the C's right - they did recommend however, that this should be a last resort remedy and should not be warded when other remedies adequately punish the D for his or her conduct
- The Law Commission has argued that punitive damages may play a positive role in encouraging employers to exercise greater control of their work force and will asset Cs who are unable to identify which member of the employer's workforce has committed the tort. In Rowlands v Chief Constable of Merseyside Police, the CA confirmed that an employer could be vicariously liable for punitive damages. Despite arguments to the contrary, it was felt desirable to make such an award which would ensure that the victim received damages of an adequate amount which would be paid by those who bore ultimate responsibility for the tortfeasor's conduct
-This is only relevant when the C has suffered personal discomfort and inconvenience
- Considering noise for example the courts will looks at the nature of the locality, for example a factory making noise in an industrial area it will be less likely to find actionable nuisance
-The nature of locality may change and develop and therefore the courts must look at the present
-In the case of Coventry v Lawrence:
Coventry v Lawrence [2012] EWCA Civ 26 Court of Appeal

The claimants brought a nuisance action against the defendant in respect of the noise generated by motor sports conducted on their land. The motor sports included speedway racing, stock car racing banger racing and motorcross. Planning permission had been granted in 1975 for the construction of a speedway stadium and for the construction of a further motorcross stadium in 1992. The defendant held a certificate of lawful use under the Town and Country Planning Act 1990. The claimant purchased a house 864 meters from the track in 2006. The trial judge found for the claimants and awarded damages and an injunction. The defendants appealed contending:

1) the judge had failed to properly take into account the effect of planning permission on changing the character of the locality

2). The claimants had come to the nuisance which had been operating for many years

3) the defendants had acquired a right by prescription to causes such nuisance.

Held:

Appeal allowed on the first ground. There was no need to consider the second and third grounds.
- There is balancing between the needs of the parties involved in determining nuisance which can now have significant human rights implications when public authorities have resourced constraints and wider public obligations to take into account their activities
- S.6 of the HRA 1998 provides that it is unlawful for a public authority to act in a way which is incompatible with a convention right and the term "public authority" also applies to the courts
- One must look at art.8(1) of the ECHR this states that " everyone has the right to respect for his private and family life, his home and his correspondence", this has been interpreted by the ECHR in a broad sense permitting parties without rights in the home to sue
- "For the purposes of art 8 of the convention, there is no such distinction. "Home" is an autonomous concept which does not depend on classification under domestic law. Whether or not a particular habitation constitutes a "home"..will depend on the factual circumstances, namely, the existence if sufficient and continuous links"
- In the case of McKenna v British Aluminium Ltd 30 children from a number of households had brought actions for private nuisance and under the rule in Rylands v Fletcher alleging that emossions and noise from the D's factory had caused them mental distress and physical harm. The judge rejected the D's argument and that their claims should be struck out unless they could prove a proprietary right
- It should also be noted that art 8 is a qualified right and under art 8.2 be justified on the basis
- Lord Wilberforce, however, made it clear that the D's conduct should be judged in the light of his or her resources and ability to act in the circumstances: "in such situations the standard out to be to require of the occupier what it is reasonable to expect of him in his individual circumstances"
- Therefore, where the D is poor and abatement will require vast expense, the D will not be considered as liable. Equally less will be expected of the infirm than of the able-bodied
- In the case of Page Motors Ltd v Epsom and Ewell BC: for example, the CA applied in that case the D was a local authority. The court, in deciding whether it had failed to take the reasonable steps, therefore considered the responsibilities of the local authority to the public at large, for example, for the problems likely to be produced by moving the travellers to another site in the borough. Whilst this would justify it acting more slowly than a private individual, permitting the nuisance to continue for five years was seen as excessive
- The subjective test may be contrasted with the objective standard of care adopted in negligence
- The duty of care imposed on landowners in negligence for omissions is seen in the case of Smith v Littlewoods - here the occupier was held not to be liable to adjoining occupiers for the acts of vandals who had set fire to a derelict cinema on its land. The court held that the occupier would not be responsible where it was no more than a merely foreseeable possibility that trespassers would gain access to land and cause damage to the property of neighbouring owners
- The courts will need to establish the purpose for which the premises are let
- For example in the case of Smith v Scott: a swelling house had been let to a family known by the landlord to be likely to commit a nuisance. The tenants proceeded to cause damage to the neighbouring property of an elderly couple, and caused such a nuisance that the couple were obliged to leave their home and seek other accommodation. The landlord had inserted into the tenancy agreement a clause expressly prohibiting the committing of a nuisance. The insertion of this covenant countered any arguments of implied authorisation, so that it could not be said that the nuisance was a necessary consequence of the letting
- This decision was approved in the case of Hussain v Lancaster CC: the Cs were shopkeepers in a council housing estate, who had been subjected to racial harassment and vandalism by other council tenants. Some individuals were prosecuted, but a total of around 106 individuals were in these actions. The council was held not to be liable from the racial harassment of the shopkeepers by its tenants on the estate. The council's standard and form tenancy agreement included a clause instructing the tenant "not to discriminate against or harass any residents or visitors". In these circumstances, the council could not be said to have specifically authorised these acts
- It was stated by the House of Lords in the case of Southward LBS v Mills: " it is not enough for [landlords] to be aware of the nuisance and take no steps to prevent it. They must either participate directly in the commission of the nuisance or they must be taken to have authorised it by letting the property"
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